ALJDEC

00F-M1123-ROC · Registrar of Contractors · 2000-11-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2000 APPEARANCES: Complainant : Pete Cattelino, the homeowner, appeared at the hearing pro se; Mariann Cattelino, wife and homeowner; Witness Deborah Bonilla, real estate agent. Respondent : Justin Jobe, Qualifying Party and President, Izzy Construction, Inc.; Joe Jobe, employee. Registrar of Contractors Inspector : Van Bagley. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent is in the business of constructing residential structures doing business in the state of Arizona as Izzy Construction, Inc., holding a Class B- license (General Residential Contracting) issued by the Registrar of Contractors. Justin Jobe is the President of and Qualifying Party for Izzy Construction, Inc.[1]

2. Complainant and Respondent entered into a written contract on January 30, 1999 whereby the Respondent contractor agreed to furnish material and perform services necessary to construct a residence upon property situated at 15423 E. Via del Palo, Chandler, Arizona. In consideration for the work performed and materials provided, Complainant has paid the sum of $190,074.[2]

3. Complainant initially filed a complaint with the Registrar of Contractors on February 17, 2000 that resulted in the Registrar’s issuance of a Corrective Order on April 19, 2000. Thereafter, Complainant amended the complaint on April 17, 2000 and a subsequent inspection was undertaken by the Registrar’s Inspector on May 30, 2000, which resulted in another Corrective Work Order on June 12, 2000.

4. The parties stipulate that there are three issues remaining to be addressed: (a) Exterior painting; (b) Interior painting; and (c) Exterior siding.

5. A pre-hearing job site inspection was conducted by Registrar of Contractors Inspector Van Bagley on November 9, 2000. At the hearing, the assigned Inspector gave his opinion that the following items remain deficient in workmanship and need to be addressed; generally, the items relate to the three issues noted supra in paragraph 4: 1) Beams on the patio require painting; 2) the east window of the “Great Room” requires interior and exterior painting; 3) the exterior peeling trim on the garage requires repair; 4) the joints of the trim at the beams on the front porch require repair; 5) the ceramic tile in the archway between the “Great Room” and the kitchen require repair; 6) the front porch ceiling requires a painting; 7) the cracked frame on the shutters needs to be repaired or replaced (Respondent has agreed to replace the shutters, homeowner has agreed to install); 8) the stem wall repairs require a painting; 9) trim around the beams on the front porch requires repair; 10) the door in the master bedroom closet requires an adjustment and a painting; 11) the door off the master bedroom leading to the patio needs caulking and painting; 12) the faucet in the kitchen needs to be repaired/replaced; 13) the exterior lap siding needs to be repaired or replaced due to extensive “buckling”; and, 14) the exterior trim will require painting once the siding has been addressed.

6. Respondent stipulates to the need to address all of the painting related issues. Respondent does not, however, agree that the “buckling” condition of the siding, so very evident through a visual inspection as manifested by the photographs received into evidence, has resulted from a deficiency in workmanship. Respondent, in fact, relies upon the Minimum Workmanship Standards for Licensed Contractors as published by the Registrar of Contractors, October 2000, page 39, to support Respondent’s assertion that the siding, as installed by Respondent’s subcontractor, falls well within acceptable tolerance, “straight and flat within 3/8” in 10’.” Respondent submitted no evidence bolstering the assertion that the installation of the siding conforms to standards.

7. The Registrar’s Inspector testified that the photographs admitted into evidence fail to do justice to the enormity of the inadequacy of the condition, given any standard. Further, the Inspector gave as his opinion that the siding needs to be repaired or replaced, due to the bowed condition of the siding, albeit the Inspector was unable to give an opinion, one way or the other, whether the installation of the surfacing material conformed to standards. The Inspector simply does not know, to a degree of certainty, whether the unsatisfactory condition is a result of deficient workmanship in installation or a manufacture’s defect (the type of siding used is called “Old Mill”, according to the contractor).

8. The weight and sufficiency of the evidence establishes that the home, as constructed, is deficient in workmanship. Each of the items identified by the Inspector manifests a deficiency more probably related to faulty workmanship than any other possibility. Once the Registrar’s Inspector testified that there exists a deficiency in condition that is, in his opinion, a result of a deficient workmanship, the burden fell to the contractor to present evidence qualitatively better on the issue. The contractor failed to rebut the evidence supplied by the Complainant, through the testimony rendered by the Registrar’s Inspector[3], other than the Respondent contractor’s assertion that it complied with workmanship standards in the installation of the subject siding. While the Inspector ultimately could not conclude whether the deficiency in the siding was caused by the Respondent contractor, that is, by and through the subcontractor’s sub-standard workmanship, it is reasonable to conclude that the deficient condition is more likely due to shortcomings in workmanship.[4] CONCLUSIONS OF LAW 1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3), (7) and (23); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case the Complainant, is more probably correct on the issue(s) in dispute.

3. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) and (23) as charged in the Citation and Complaint. Respondent failed to address all of the deficiencies in construction of which Respondent had been given notice by the Registrar’s Inspector’s issuance of two Corrective Work Orders. Respondent should be required to repair and/or replace the deficient items noted herein. It was and is a reasonable expectation of these homeowners that they be provided a residence constructed in accordance with applicable standards. The weight of the evidence persuades that they have not been provided that to which they are entitled given their consideration and the requirements of Title 32.

4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person.

5. Respondent’s failure to effect a repair of the deficiencies of which it had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B- license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes appropriate and effective remedial work of the deficiency described in Findings of Fact Nos. 5 and 8 herein, on or before the effective date of the Order, the suspension should not be put into effect and the file closed. Set forth this 13th day of November in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Justin Jobe is also a limited liability partner of and Qualifying Party for Strippling Warriors Contractors, L.L.C. [2] The contract has been paid in full, escrow having closed on July 4, 1999. [3] The Inspector was called as a witness by the Complainant. [4] The contractor testified that his company has been responsible for the construction of ten homes requiring installation of the identical (“Old Mill”) siding. This is the only job, according to Respondent’s President and Qualifying Party, that has resulted in this degree of deficiency in condition.

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