ALJDEC

00F-H0230-ROC · Registrar of Contractors · 2000-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2000. APPEARANCES: The Complainant appeared personally. The Respondent appeared through its president and qualifying party, Amir M. Azarmi. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of License Number 090937, a Class B general residential contractor’s license, issued by the Registrar of Contractors. 2. Respondent was the general contractor for the construction of Complainant’s residence in Bullhead City, Arizona. 3. Complainant filed a series of complaints with the Registrar of Contractors alleging various areas of deficient workmanship attributable to Respondent. 4. The only item remaining in dispute by the parties is a kitchen counter top where the seam is swollen. 5. Respondent hired Custom Counters & Wood Spec., Inc. (“Custom Counters”), as the counter top subcontractor for Complainant’s residence. 6. Custom Counters installed a Formica laminate counter top product in Complainant’s kitchen. A seam fill product was used in the joint to camouflage it to blend into the overall appearance of the counter top. 7. The seam fill product used in the joint is not a sealant. 8. The counter top seam at issue is located approximately three feet to the left of the kitchen sink. 9. In September of 1999, the seam began to warp. Complainant filed an additional complaint with the Registrar concerning the warping. 10. The Registrar’s assigned agency inspector performed a jobsite inspection to view the warping Formica laminate, among other areas of alleged deficient workmanship. That inspection resulted in the issuance of a corrective work order requiring, among other things, that Respondent remove and replace the Formica kitchen counter top that is warping. 11. Two corrective work orders had been issued by the Registrar to the Respondent in this matter. Except for the warped counter top, Respondent has complied with all other remedial work required by the Registrar. 12. The Registrar of Contractors’ Minimum Workmanship Standards for Licensed Contractors, January 2000 edition, provides that “moisture should never be allowed to stand on seams and/or joints for more than 24 hours”. 13. Custom Counters insists that the warping in the counter top is the result of owner abuse. It claims that a coffee maker, toaster oven and small water fountain subjected the seam to elements that caused the seam to warp. There is no credible evidence that any of those items were ever placed directly on the seam. 14. The Complainant’s small water fountain could have caused some water to splash outside its unit. However, there is no direct evidence that either the water fountain caused moisture to be introduced that caused the warping of the seam or that Complainant or his wife ever allowed water to stand on the seam for more than 24 hours. 15. It is found that Complainant’s positioning and use of a toaster and coffee maker on his kitchen cabinet constituted a reasonable and foreseeable use of the counter top. There is no credible evidence that Complainant’s family use of those products caused damage to the seam. 16. Respondent, as the general contractor, is responsible for the work performed by its subcontractor, Country Counter. 17. Respondent is found to be responsible for the removal and replacement of the deficient warping counter top. The warping counter top does not meet minimum workmanship standards. Respondent raised the possible defense that the counter top warping resulted from owner abuse by Complainant, but that defense was not proved. 18. While the evidence presented at the hearing supported Complainant’s contention that the damaged seam resulted from deficient workmanship, there was credible evidence to establish that the true cause of the warping condition can be determined when the Formica laminate is removed from the substrate. If the condition was caused by water damage, there would be evidence of such in the substrate. Any such evidence of water damage may constitute the discovery of new evidence warranting the granting of a rehearing in this matter, provided that such a petition is timely filed. It is highly recommended that Complainant be present when the laminate top is removed so that he too can preserve any evidence discovered. 19. Notwithstanding Respondent’s failure to timely undertake remedial work to the warped counter top, it is determined that Respondent did substantially comply with the Registrar’s May 8, 2000, Corrective Work Order. 20. Based upon the evidence of record, it is found that Respondent’s failure to perform remedial repairs to the damaged counter top as directed by the Registrar’s written directive constitutes a wrongful act which has substantially injured the Complainant. 21. Country Counter did offer to replace the laminate counter top in the vicinity of the seam and insert a piece of Corian counter top, which would be slightly higher in elevation than the remaining Formica laminate. Complainant and his wife rejected that offer believing that the repair would not be aesthetically pleasing. However, that offer should be considered as a matter in mitigation when contemplating any disciplinary action against the Respondent in this matter.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7) and (3); namely Rule R4-9-108. 2. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(23).

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that Respondent’s Class C License be suspended until the Registrar of Contractors receives written proof that Respondent has removed and replaced Complainant’s warping kitchen counter top to minimum workmanship standards. It is further recommended that if Respondent properly performs, or causes to be performed, the above described remedial work on or before the effective date of the entered Order in this matter, then the above-provided license suspension shall not take place, and the Citation and Complaint herein shall be closed.

Done this day, November 6, 2000

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater, Director Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826