ALJDEC

00F-T1021-ROC · Registrar of Contractors · 2000-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Monday, December 11th, 2000; 9:00 a.m. APPEARANCES: The complainants, William P. and Jacqueline Devery, appeared and represented themselves. The respondent, David J. Baird Design and Building, Inc., was represented by Mr. Terry P. Esser, attorney-at-law.

ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson, as scheduled. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent, David J. Baird Design and Building, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the state of Arizona, holding Class B License number 102142. 2. The complainants are a married couple who purchased a custom-built home from the respondent on or about July 2nd, 1998, constructed in a subdivision then being developed by the respondent in the town of Oro Valley, Arizona. (Motion by the complainant to add her husband as a co- complainant was made and without objection granted on the record.) The contract price of the home was $235,910.00. 3. Prior to closing, the complainants and respondent’s agent conducted a final walk-through inspection of the home on April 15th, 1999. The inspection produced a “punch list” of minor items to be corrected. These items were corrected as evidenced by the initials of complainant appearing on the document, and dated September 22nd, 1999. 4. The deal was closed on April 15th, 1999. 5. The next day following the final walk-through and closing, April 16th, 1999, the complainants made the first of what became a series of 61 service requests of the respondent, to address a total of 93 items in the home. The making of these requests spans from April 16th, 1999, across the following 19 months, until the last request (known to the record) was made November 27th, 2000, just two weeks prior to this administrative hearing. 6. The respondent was generally attentive to these requests, and most were resolved to the satisfaction of the complainants. However, the complainants, on June 26th, 2000, even while the service requests were still proliferating, filed the instant complaint with the registrar. The complaint contains an enumeration of seven issues, the seventh being miscellany. 7. The items of the complaint which remained as of the date of the administrative hearing, and placed on the hearing table by the complainants are five. 1. Replacement of fixtures in the hall bathroom. Respondent made the replacement. However, the complainants’ issue on this work they now subdivide into two parts; the respondent’s leaving two exposed holes in the wall after the work, and an alleged discrepancy of $95.00, to the complainants’ loss, in the price of the fixture that was removed versus the price of the replacement fixture. 2. The painting and hanging of an exterior door. Complainants’ complaint is that, although the respondent did hang the door, the respondent removed the door’s weather stripping, and there are small areas on the door needing sanding and touch-up painting. 3. Complainants allege damage to the driveway by the respondent and respondent’s subcontractors. Complainants wish to have the respondent either completely seal the driveway or completely replace it. 4. Complainants allege that the exterior paint job is defective, including its failure to cover visible cracks in the stucco. They allege the paint used was substandard. Complainants wish to have the respondent repaint the entire exterior of their home. 5. Complainants allege that the elevation of the drainage blocks (referred to in the record also as “weep holes”) in the rear wall relative to the finished floor level is in violation of the Town of Oro Valley code, and requires correction. They also allege the horizontal placement of the drainage blocks is incorrect. 8. The Registrar of Contractors assigned Inspector Bob Gibson to the complaint for investigation in the normal course of the agency’s procedures. Inspector Gibson conducted a job-site inspection at the complainants’ home on August 21st, 2000. Following his inspection, Inspector Gibson declined to issue a Corrective Work Order to the respondent, having concluded either that there was no work of the respondent that was defective or below the standards of the industry or the registrar’s workmanship standards, or that the respondent had agreed to make the requested change. Inspector Gibson sent correspondence to both parties on September 8th, 2000, in which he informed them of his findings. 9. Respecting the complainants’ first issue, the bathroom fixtures, the inspector noted in his letter that the respondent had agreed to replace the fixture with an equivalent fixture selected by the complainants. Respondent, as was found, did this work, but in doing the work, gave rise to the complainants’ revised issues of the two holes and the $95.00. Inspector Gibson’s pre-hearing inspection antedated the work, so he offered no testimony as to the holes, and neither could offer any testimony as to the prices of the two fixtures. 10. Respecting the complainants’ second issue, the exterior door, Inspector Gibson noted in his letter that the respondent had also agreed to install and paint the upgraded door. As was found, the door was installed, but this gave rise to the complainants’ revised complaints about that work. Again, this work was done after Inspector Gibson’s pre- hearing inspection, so his testimony could throw no light on the subject of the respondent’s door workmanship. 11. Respecting the complainants’ third issue, the driveway, Inspector Gibson noted in his letter that the concrete driveway, as to both its placement and finish, was within minimum workmanship standards. He testified at hearing that based on his pre-hearing inspection a week previous he would not alter his conclusion on this subject. 12. Respecting the complainants’ fourth issue, the exterior painting, Inspector Gibson noted in his letter that the exterior painting is in compliance with minimum workmanship standards. He further testified that based on his pre-hearing job-site inspection, although he would not alter his conclusion on this subject, he did then see some localized areas where paint was peeling. He testified that these areas should be corrected. 13. Respecting the complainants’ fifth issue, the location of the “weep holes” or drainage blocks in the rear wall, Inspector Gibson noted in his September 8th, 2000 letter that the issue was the “back yard and drainage.” However, this was not the issue raised by the complainants. Inspector Gibson noted that the complainants had had a swimming pool installed in their backyard, and that construction had altered the grade, thereby relieving this respondent of responsibility to correct the grade. 14. It is found that there were two holes left in the wall of the hall bathroom and these need to be corrected by the respondent. The complainants’ evidence is that they lost $95.00 in the switch-out of one fixture for another. The original fixture was no longer available. Respondent’s evidence was that although it could not confirm or deny that complainants received a fixture costing $95.00 less than what the complainants paid, it would have no objection to providing documentation to the complainants that would verify the relative costs of the two fixtures and refund any loss to the complainants. 15. It is found that the respondent needs to replace the weather stripping to the exterior door, and sand and repaint any rough areas of the door. 16. It is found in concurrence with Inspector Gibson’s finding as to the concrete driveway. Complainants had admitted into evidence several photographs of the driveway. It cannot be found that the concrete work was below minimum workmanship or industry standards. True, there are some areas where some ugly residue of some sort appears on the concrete, but there is insufficient evidence to find that the respondent is responsible for its being there. 17. It is found generally in concurrence with Inspector Gibson’s finding as to the quality of the exterior painting, stated in his letter and amended in his testimony to include the areas of peeling paint. In addition to the areas of peeling paint, the complainants produced photographic evidence proving that one pillar was not painted the same color as the adjoining wall, or was not painted at all. (See: Comps.’ Ex. 5) This is not a slight difference of shade which to some degrees are within industry and workmanship standards, but a completely different color. The respondent needs to paint this pillar to match as closely as possible the color of the adjacent wall. 18. Complainants testified that an individual associated with the respondent told them that a work order had been issued by the respondent to repaint the entire exterior, but there is no evidence corroborating this one piece of rather slight hearsay. There is evidence in the form of work orders to perform some “touch up paint,” and to “paint exterior of the house that needs to be done,” as well as evidence that as of June 20th, 2000, this work was done to the complainants’ satisfaction. (See: Resp.’s Exs. O, P and Q.) 19. It is found as to the issue of the placement of the drainage blocks that the complainants’ evidence fails. Complainants claimed that the placement of the blocks was in violation of the Oro Valley Code, but produced no documentary evidence of that town having issued a notice of code violation. It would seem that if there was a code violation the town would have cited the construction as being in violation, especially since the complainants’ evidence is that they were working closely with the Town of Oro Valley to document their complainant on this issue, and made employees of the town who work in this area of Oro Valley town governance aware of it. 20. Also, the evidence the complainants did produce regarding the drainage blocks is their own testimony of a line shot by the swimming pool contractor who they said used a surveyor’s transit, taken at a point on the lanai where it may fairly be questioned if that was an appropriate point to be used, and documents the complainants testified they obtained from Oro Valley, and their own mathematical computations. (Again, considering how thoroughly the complainants investigated the matter with Town of Oro Valley officials, and obtained documents from them, the reasonable inference is that if there had been a code violation issued from the town, the complainants would have obtained and presented it at hearing.) No evidence at all was produced showing any actual drainage problems at the site in question since the completion of the construction. Even if Inspector Gibson’s findings are dismissed as beside the point trying to be made by the complainants, the complainants did not support their claim on this matter with sufficient proof to find that the location of the blocks, horizontally or vertically, was incorrect or in violation of any building code. 21. Respondent’s president and qualifying party, Mr. David Baird, testified that the Town of Oro Valley issued its approval of the entire construction, including the wall. The Town of Oro Valley issued a Certificate of Occupancy. 22. In sum, it is found by the record evidence taken as a whole that the respondent ought to perform the following: 1 provide documentation to the complainants of the relative costs of the bathroom fixture removed and the bathroom fixture replacement, and if there is a cost difference favoring the complainants refund same; 2 repair the two exposed holes in the bathroom wall by appropriate means; 3 replace the weather stripping, sand and touch-up paint the exterior door as needed; 4 paint or repaint the pillar shown in Complainants’ Ex. 5, color to match that of the adjacent wall as closely as possible, and 5 repaint any areas of the exterior where paint is peeling. 23. Notice is taken of the respondent’s prior license record with the Registrar of Contractors, which happens to be quite good. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. The respondent herein is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited is A.A.C. R4-9-108, Workmanship Standards. A.A.C. R4-9-108.A. requires all work to be performed in a professional and workmanlike manner. It appears from the evidence that as to the items of workmanship enumerated in Finding of Fact #22, the respondent did violate this rule, and thereby violated A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154.A.7. prohibits a licensed contractor form engaging in any wrongful or fraudulent activity as a contractor which results in another person being substantially injured. There is no allegation and no scintilla of evidence of fraud on the part of the respondent. There is no evidence of wrongdoing on the respondent’s part other than the relatively minor violations of A.R.S. §32-1154.A.3 concluded above, and the possible retention of $95.00 rightfully belonging to the complainants. 5. An order directing the contractor to make restitution to the homeowner is appropriate if the facts of the case warrant. See: Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437,441, 803 P.2d 430 (App. 1991). Thus if the documentation provided the complainants shows that they are entitled to a refund as restitution for the difference in price of the new fixture versus the old fixture, an order requiring that restitution to be made is proper. RECOMMENDED ORDER In view of the foregoing it is hereby recommended that respondent’s Class B License number 102142 be temporarily suspended until such time as the registrar receives proof that the respondent has properly accomplished the corrective action set forth in Finding of Fact #22, hereinabove. It is further recommended that if the respondent properly accomplishes the above-described corrective action, on or before the effective date of this order, then the above-provided license suspension shall not take place, and Citation and Complaint number T00-1021, together with the complaint on which it is based, shall be closed. Done this day, December 21st, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488