ALJDEC

01F-1124-ROC · Registrar of Contractors · 2001-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 13 and 26, 2001. The record closed on August 15, 2001. APPEARANCES: Susan Cox appeared on behalf of Complainants. Jeff Klem, Assistant Vice President, appeared on behalf of Respondent Elliott Homes, Inc. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent Elliott Homes, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Elliott Homes, Inc. (“Elliott”) is the holder of a Class B license (No. 051293) issued by the Registrar of Contractors (“ROC”). Harry C. Elliott, III is Elliott’s qualifying party. In March 1998, Complainants Susan and Alfred Cox entered into a contract with Elliott to purchase a new home on Lot 137 in Crystal Point, a subdivision that Elliott was constructing in Avondale, Arizona. The Coxes’ home is a model 4133, the “Carlisle.”

The Carlisle was not one of the homes modeled by Elliott at the Crystal Point subdivision. Therefore, Karl Ermisch, the Elliott sales associate who assisted the Coxes with their purchase at Crystal Point, suggested that the Coxes view the Carlisle model at Greenfield Lakes, an Elliott subdivision located in Gilbert, Arizona. The Coxes did so, and it was upon viewing the Carlisle model at Greenfield Lakes that the Coxes decided to build a Carlisle model at Crystal Point. The Coxes moved into their new home on October 28, 1998. On October 23, 2000, the Coxes filed a complaint against Elliott with the ROC. In that complaint, the Coxes alleged the existence of numerous workmanship and other deficiencies related to Elliott’s construction of their home, and further that their home lacked certain features that were present in the model home that the Coxes had viewed in Greenfield Lakes. ROC Inspector Mel Purchase investigated the Coxes’ complaint. On November 3, 2000, Inspector Purchase conducted a jobsite inspection at the Coxes’ home. On November 21, 2000, Inspector Purchase issued a Corrective Work Order (“CWO”) under which the ROC gave Elliott 15 days to correct a number of the workmanship deficiencies that had been alleged by the Coxes in their complaint. As to the missing model home features, Inspector Purchase concluded that the Coxes had failed to demonstrate they were entitled to receive such features, and therefore determined that no further action was required of Elliott as to these items. Subsequent to the November 3, 2000 jobsite inspection, the Coxes amended their complaint by alleging 22 additional workmanship and other deficiencies related to Elliott’s construction of their home. On January 16, 2001, Inspector Purchase conducted a second jobsite inspection at the Coxes’ home to evaluate the amended complaint items. On January 25, 2001, Inspector Purchase issued a second CWO under which the ROC gave Elliott 15 days to correct several of the amended complaint items. As of the hearing date, the following workmanship items from the November 21, 2000 CWO remained at issue: Complaint # 2 Kitchen counters had a one piece back splash later cut off and glued together. Back splash was installed as a one piece unit then replaced, should have been replaced with a one piece unit. Contractor to correct by the appropriate means.

Complaint # 3 Kitchen windows are 4 inches lower than on blue prints filed with city. This interferes with counter back splash and does not match the rest of the home. Windows are 2.25” lower than prints call for. Contractor to correct by the appropriate means.

Complaint # 6 Several areas in kitchen where touch up paint was used, paint was too high gloss ( was told this would fade. Some areas touched up with wrong color paint. Contractor to correct by the appropriate means as per job site agreement.

Complaint # 7 Bird stop over driveway not properly installed birds have made nest. Built according to plans and other homes in area. No Action Required.

Complaint # 8 Eaves are splintering underneath, with nails poking out. Nails on overhang right side of front walk are showing through. Contractor to correct by the appropriate means as per job site agreement.

Complaint # 13 Driveway has cement cracking off and cracks in the edges. Repairs look bad. After inspection owner understands the patches will be darker. Contractor agreed to correct chips. Contractor to correct by the appropriate means as per job site agreement.

Complaint # 16 Roof tile sliding off roof in several areas. Roofing contractor to check roof for loose tiles. Contractor to correct loose tiles according to industry standards as per job site agreement.

Complaint # 18 Fireplace doors uneven. The doors are not level, sagging in center. Contractor to correct doors.

Complaint # 24 Vent pipes need to be insulated going through roof. Tile roof could not see but vent pipes do not get insulated. No Action Required.

Complaint # 25 Gutters dump tons of rain in the front entry and valley metal not even. Valleys as per plans. Valley metal should be even. Contractor to correct by the appropriate means.

Complaint # 26 Block fence in rear yard needs to be six foot in height. The back fence is the same as the house next door. Fence is 7’0” high on the back side. No Action Required.

Complaint # 27 Side fence is un-level, mortar is different color. Panel lines appear to be normal. Color is not correct. Contractor to correct by the appropriate means.

Complaint # 32 Should have pop-out length of front of house both sides. House appears to be according to plans. No Action Required.

Complaint # 33 Leaks from dishwasher in kitchen caused wetness under sink and repairs made was just a veneer of wood placed over the water damage bottom. Inspector cannot determine if water damage was by owner or caused by something contractor did. No Action Required.

Complaint # 43 R.V. gate is wedged together and will not shut properly. Gate hard to open because of rocks. Column is out of plumb 3/8” in 4’. Hinges pulling out from column. Contractor to correct by the appropriate means.

Complaint # 46 Molding around the kitchen island and cabinet are off and not installed properly. Rounded shelf edges are coming loose. Molding is off some of the cabinets, it appears to have been corrected once but molding appears to be twisting. Needs replacing. Edging on shelf is coming loose. Contractor to correct by the appropriate means.

Complaint # 48 Back side fence has mortar that does not match original and is cracking. Mortar is a different color. No Action Required.

As of the hearing date, the following workmanship items from the January 25, 2001 CWO remained at issue: Complaint # 1 Many areas of pitting in 3-car garage driveway. There are some pin size holes in drive. Appear the same in other drives. No Action Required.

Complaint # 3 Inside drywall texture is not consistent and has areas where no texture at all. Appears normal. No Action Required.

Complaint # 5 Garage molding coming off again, appears to have no board to nail or fasten to. Work complete before jobsite according to homeowner. No Action Required.

Complaint # 7 Soil needs to be re-graded on east side of house where fence was replaced. Copy of check for settlement on landscaping. No Action Required.

Complaint # 11 Excessive chipping of stucco noticed around windows and where stucco meets wood. Was one small area of stucco on back window. Contractor to correct by the appropriate means.

Complaint # 14 Gray grout noted in all block fences. Grout wrong color. Contractor to correct by the appropriate means as per job site agreement.

Complaint # 17 Back fence has gray grout should be burgundy. Grout is different color. Contractor to correct by the appropriate means as per job site agreement.

Complaint # 18 Sloping grade in front where soil was not hauled away. Grade does slope from the fence down appears normal. No Action Required.

Also at issue as of the hearing date were the following complaint items that fall outside the workmanship category: Complaint # 17 (11/21/00 CWO) Heater repair bill needs to be paid by Elliott. No bill shown. No Action Required.

Complaint # 18 (11/21/00 CWO) [Fireplace] blower promised by Elliott not installed. Nothing to show blower. No Action Required.

Complaint # 9 (1/25/01 CWO) Want fireplace inspected by building dept. Work was done after final move-in inspection and not re-inspected. Fireplace appears to be working as intended. Contractor agreed to check with city to determine if second inspection is needed. Contractor to check and see if second inspection is needed as per job site agreement.

The Administrative Law Judge first addresses the workmanship items. Thereafter, the Administrative Law Judge addresses non-workmanship issues and then the missing model home features. THE WORKMANSHIP ITEMS The 11/21/00 CWO The Back Splashes (CWO Item 2) The weight of the credible evidence demonstrated that as originally constructed, the Coxes’ kitchen countertops all had rolled (one piece) back splashes. Subsequent to the initial construction, but before the Coxes took possession of their home, Elliott replaced several of the kitchen countertops and in so doing changed the back splashes from rolled to set-on (i.e., the back splashes were attached as separate pieces). Based on Inspector Purchase’s testimony, the Administrative Law Judge finds that Elliott’s use of different back splash applications within the Coxes’ kitchen constitutes workmanship that fails to meet the minimum standards applicable to licensed contractors in the State of Arizona (hereafter “Arizona’s minimum workmanship standards”), and that the Coxes are therefore entitled to receive new countertops with rolled back splashes in those areas of the kitchen where Elliott installed set-on back splashes. Elliott asserted that the reason the rolled back splashes were replaced with set-on back splashes was because the rolled back splashes were an improper application in those particular areas. However, Elliott failed to present any probative or reliable evidence in support of this assertion. The Kitchen Windows (CWO Item 3) At hearing, Inspector Purchase credibly testified that his initial measurements of the height of the Coxes’ kitchen windows had been erroneous, and that upon re-measurement he determined that the kitchen windows complied with the plans and specifications for the Coxes’ home. Ms. Cox testified that her husband had measured the kitchen windows and concluded that they did not conform with plans for the Coxes’ home that were on file with the City of Avondale. Mr. Cox did not testify at hearing, however, and Elliott had no opportunity to examine Mr. Cox regarding his conclusions. The Administrative Law Judge found the hearsay evidence as to Mr. Cox’s conclusions to be less reliable and less probative than Inspector Purchase’s testimony, and therefore finds, based on Inspector Purchase’s testimony, that the Coxes’ kitchen windows were properly installed. The Roof (CWO Item 16) Elliott’s work on the Coxes’ roof met Arizona’s minimum workmanship standards, except with respect to the presence of loose roof tiles that must be properly fastened. The Administrative Law Judge bases this finding primarily on the testimony of Inspector Purchase, whom the Administrative Law Judge found to be the most credible witness as to the condition of the Coxes’ roof.[1] At hearing, Elliott presented evidence as to its efforts to inspect the Coxes’ roof prior to commencing repairs, and suggested that Ms. Cox had denied Elliott access to the roof of her home. The Administrative Law Judge finds, however, that Elliott did not properly schedule a time to conduct its roof inspection and that the Coxes did not deny Elliott access to their roof.

The Fireplace Doors (CWO Item 18) Elliott’s work on the Coxes’ fireplace doors did not meet Arizona’s minimum workmanship standards. Elliott’s fireplace subcontractor, Jimmy Sims, acknowledged that the Coxes’ fireplace doors do not close properly and that he is unable to bring them into good working order. Elliott’s proposed solution to this deficiency was to replace the Coxes’ fireplace doors with a single piece of fixed glass. The Coxes objected to this proposal, asserting that they had ordered and paid for doors. At hearing, Elliott acknowledged that replacement doors could be specially ordered. The Administrative Law Judge finds that the Coxes contracted for fireplace doors ( not fixed glass ( and that Elliott is obligated to provide such doors, even if a special order is required. The Block Fence (CWO Items 26 & 27; Also Items 14 & 17 in the 1/25/01 CWO) Elliott’s work on the Coxes’ block fence met Arizona’s minimum workmanship standards except with respect to the cap on the column in the northeast corner, which requires painting. The Administrative Law Judge bases this finding primarily on the testimony of Inspector Purchase, whom the Administrative Law Judge found to be the most credible witness as to the condition of the Coxes’ block fence. The Water Damage (CWO Item 33) The weight of the credible evidence demonstrated that approximately 1½ weeks after the Coxes moved into their home, a blocked plumbing line caused water to back up through the air gap, which in turn leaked causing water damage to the shelf under their kitchen sink. Elliott repaired the damaged shelf by “skinning” it with a piece of wood laminate. However, the water that had saturated the shelf also saturated the laminate, thus causing water damage to the laminate. There was some dispute at hearing as to the cause of the blocked plumbing line; however, the Administrative Law Judge finds that cause to be irrelevant because Elliott undertook the repair of the shelf and it is the outcome of that repair which is at issue in this matter. Therefore, Elliott’s repair of the water damage to the shelf under the Coxes’ sink did not meet Arizona’s minimum workmanship standards. The R.V. Gate (CWO Item 43) Elliott’s work on the Coxes’ R.V. gate did not meet Arizona’s minimum workmanship standards. The weight of the credible evidence demonstrated that despite Elliott’s repair efforts, the Coxes’ R.V. gate does not close properly. Inspector Purchase testified at hearing that R.V. gates such as the Coxes’ require periodic adjustments, and that such adjustments become a homeowner maintenance item once a contractor completes initial repairs. The Administrative Law Judge agrees generally with this testimony, but finds this policy inapplicable to the instant case because Elliott’s repairs have not as yet remedied the workmanship deficiency. The Kitchen Island Shelves (CWO Item 46) In compliance with the November 21, 2000 CWO, Elliott made repairs to two of the shelves in the Coxes’ kitchen island. After those repairs had been completed, a third shelf (the bottom shelf) began to evidence similar workmanship deficiencies, specifically, the shelf’s edging began to detach. Based on the evidence presented regarding the bottom shelf, the Administrative Law Judge finds that Elliott’s workmanship as to that shelf did not meet Arizona’s minimum workmanship standards. However, because this deficiency did not manifest itself until after Elliott had made the repairs to the first two shelves, Elliott’s failure to have repaired the third cannot be said to constitute a failure to comply with the CWO. Other Items The weight of the credible evidence demonstrated that as to items 6 (kitchen paint), 7 (bird stop), 8 (eaves), 13 (driveway), 24 (vent pipes) and 25 (gutters/valley metal) as set forth in the November 21, 2000 CWO, Elliott’s initial workmanship and/or subsequent repairs may not have met the Coxes’ personal standards, but nonetheless met Arizona’s minimum workmanship standards. The Administrative Law Judge bases this finding on the testimony of Inspector Purchase and the testimony of witnesses presented by Elliott, all of which the Administrative Law Judge found to be more credible regarding the foregoing items than the evidence presented by the Coxes. The 1/25/01 CWO The Drywall (CWO Item 3) Elliott’s workmanship on the drywall in the ceiling of the Coxes’ master bedroom did not meet Arizona’s minimum workmanship standards. An area of approximately 3’ x 5’ has been excessively sanded, and does not match the texturing applied to the remainder of the ceiling. The Garage Molding (CWO Item 5) Elliott’s repair of the molding in the Coxes’ garage did not meet Arizona’s minimum workmanship standards. The weight of the credible evidence demonstrated that despite Elliott’s efforts, that molding has detached from the location where it was screwed into the footing, and must be re-attached in a proper and workmanlike manner. Other Items The weight of the credible evidence demonstrated that as to items 1 (driveway), 7 & 18 (soil grading) and 11 (stucco) as set forth in the January 25, 2001 CWO, Elliott’s initial workmanship and/or subsequent repairs may not have met the Coxes’ personal standards, but nonetheless met Arizona’s minimum workmanship standards. The Administrative Law Judge bases this finding on the testimony of Inspector Purchase and the testimony of witnesses presented by Elliott, all of which the Administrative Law Judge found to be more credible regarding the foregoing items than the evidence presented by the Coxes. The Non-Workmanship Items As noted above, three of the items about which the Coxes complained do not fall within the category of workmanship. These items are (i) the heater repair bill (11/21/00 CWO item 17), (ii) the fireplace blower (11/21/00 CWO item 18) and (iii) the fireplace inspection (1/25/01 CWO item 9). The Administrative Law Judge addresses each of these items in turn. The Heater Repair Bill In March 2000, following a service request from Susan Cox regarding one of her heating units, Elliott dispatched its heating and air conditioning subcontractor, Brock Heating and Cooling (“Brock”), to the Coxes’ home. After Brock repaired the unit, it submitted a bill to the Coxes in the amount of $50.00. The Coxes assert that Elliott is responsible for payment of Brock’s bill. The Coxes did not introduce the Brock bill into evidence, and Ms. Cox’s testimony as to the nature of the repair was vague. The Administrative Law Judge finds, based on the absence of any substantial evidence in the record that would support the Coxes’ contention as to Elliott’s liability for the Brock bill, that the Coxes failed to establish such liability. The Fireplace Blower The Coxes assert that Elliott promised them a blower for their fireplace. However, the Coxes failed to offer any substantial or probative evidence at hearing to support this claim. In the absence of such evidence, the Administrative Law Judge finds that the Coxes failed to establish that Elliott promised them a fireplace blower. The Fireplace Inspection At some point after the Coxes moved into their home (the record is unclear as to the specific date), an Elliott subcontractor working at the Coxes’ home informed them that a section of their fireplace vent pipe was “missing.” The Coxes reported this situation to Elliott, and Elliott dispatched its fireplace subcontractor to the Coxes’ home to assess the situation. The evidence of record indicates that in March 1999, Elliott’s fireplace subcontractor made repairs to the Coxes’ fireplace vent pipe. At hearing, Ms. Cox testified that she did not believe the fireplace had been inspected by the City of Avondale following the completion of the March 1999 repairs. Ms. Cox stated that she did not believe the fireplace was working properly, that it might be a safety hazard, and that she wanted Elliott to arrange for the City of Avondale to perform an inspection of the fireplace. The January 25, 2001 CWO instructed Elliott to ascertain whether a second fireplace inspection was required. At hearing, Steve Washabaugh, Elliott’s customer service representative, credibly testified that in accordance with the foregoing directive he spoke with Ken Sowers, the City of Avondale’s building inspector, who advised Mr. Washabaugh that a further inspection was not required. Mr. Sowers offered, however, to perform such an inspection at no charge if requested to do so by the Coxes. The Coxes did not present any probative evidence that the fireplace does not function properly or that it requires further inspection. The Model Home Features Fourteen of the items set forth in the Coxes’ complaint against Elliott arise from the Coxes’ claim that Elliott failed to build their home in conformance with features that were present in the Greenfield Lakes model. At hearing, Ms. Cox testified that she relied upon the Greenfield Lakes model as representing the features that she and her husband could expect to receive in their home in Crystal Point. However, Karl Ermisch credibly testified that he informed the Coxes prior to dispatching them to Greenfield Lakes that they would be doing so only to view the Carlisle floorplan, and that the included features at Crystal Point would be different from the included features at Greenfield Lakes. Mr. Ermisch further credibly testified that as to the included features at Crystal Point, he walked the Coxes through the existing models at Crystal Point to point out the features the Coxes would receive in their new home. The Administrative Law Judge found Mr. Ermisch’s testimony to be the most credible evidence on the issue of the model home features, and on this basis finds that the Coxes could not have reasonably relied on the features in the Greenfield Lakes Carlisle model as representing the features they could expect to receive in their new home. Specific to the issue of the double oven (November 21, 2000 CWO item 4), the Administrative Law Judge finds that the Coxes could not have had any reasonable expectation of receiving a double oven because although their floor plans note the existence of a double oven, Mr. Ermisch specifically reviewed with the Coxes prior to the close of escrow each of the appliances that they had selected, and none of these appliance selections included a double oven. Elliott’s Compliance with the CWO’s Based on the evidence of record as set forth above, the Administrative Law Judge finds that Elliott failed to comply with the November 21, 2000 CWO with respect to items 2, 16, 18, 27 and 43. The Administrative Law Judge notes that with the exception of CWO item 2 (back splash), Elliott attempted to remedy these items. However, under the evidence presented, the Administrative Law Judge finds that Elliott’s efforts were insufficient. Based on the foregoing, the Administrative Law Judge finds that no valid justification exists for Elliott’s failure to have corrected the above-mentioned CWO items. The Administrative Law Judge finds that Elliott did not fail to comply with the November 21, 2000 CWO with respect to item 46 for the reasons set forth in Finding of Fact No. 29. The Administrative Law Judge finds that Elliott did not fail to comply with the November 21, 2000 CWO with respect to item 33, or the January 25, 2001 CWO with respect to items and 5, for the reason that no action had been required of Elliott as to these items. The ROC’s Citation and Complaint On March 5, 2001, the ROC issued a Citation and Complaint charging Elliott with violations of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans and specifications), (A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action in response to a written directive from the ROC) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). CONCLUSIONS OF LAW In this proceeding, the Coxes bear the burden to prove, by a preponderance of the evidence, that Elliott is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its March 5, 2001 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that the Coxes met their burden of proof as to three of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans and specifications . . . in any material respect which is prejudicial to another. . . .” The Coxes did not offer any substantial or credible evidence to establish that Elliott departed from the plans and specifications for the Coxes’ home. Therefore, the Coxes failed to establish that Elliott violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Elliott with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The weight of the credible evidence demonstrated that as to items 2 (back splashes), 16 (roof), 18 (fireplace doors), 27 (block fence), 33 (shelf under sink), 43 (R.V. gate) and 46 (shelf in kitchen island) as set forth in the November 21, 2000 CWO, and as to items 3 (drywall) and 5 (garage molding) as set forth in the January 25, 2001 CWO, Elliott failed to perform its work in a professional and workmanlike manner, and in so doing violated A.A.C. R4-9-108. Therefore, Elliott violated A.R.S. § 32- 1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes, from the evidence presented, that Elliott failed to comply with items 2, 16, 18, 27 and 43 of the ROC’s November 21, 2000 CWO, and that no valid justification exists for that failure. Therefore, Elliott violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Elliott committed several wrongful acts that substantially injured the Coxes, including (1) failing to perform its work at the Coxes’ home in a workmanlike manner, and (2) failing to comply with written directives of the ROC to correct that work. Therefore, Elliott violated A.R.S. § 32- 1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Elliott’s license. The ROC’s March 5, 2001 Citation and Complaint advised Elliott that in the event of a finding of a violation against it, Elliott’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Elliott in the ROC’s official records. Those records revealed that Elliott has been the subject of one ROC disciplinary order within the past two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Elliott’s Class B license should be suspended. The Registrar of Contractors’ authority in matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Elliott’s license without providing a condition to reduce or eliminate same. Upon consideration of all the evidence, the Administrative Law Judge concludes that it is reasonable to condition Elliott’s license suspension upon completion of the following corrective work: p. Elliott shall, at its sole expense and in a professional and workmanlike manner, replace all of the countertops in the Coxes’ kitchen that have set-on back splashes with countertops that have rolled back splashes (11/21/00 CWO item 2); q. Elliott shall, at its sole expense and in a professional and workmanlike manner, identify and properly fasten all loose tiles on the Coxes’ roof (11/21/00 CWO item 16); r. Elliott shall, at its sole expense and in a professional and workmanlike manner, install new doors in the Coxes’ fireplace (11/21/00 CWO item 18); s. Elliott shall, at its sole expense and in a professional and workmanlike manner, paint the cap on the column in the northeast corner of the Coxes’ block fence (11/21/00 CWO item 27); t. Elliott shall, at its sole expense and in a professional and workmanlike manner, repair or replace the shelf under the Coxes’ kitchen sink (11/21/00 CWO item 33); u. Elliott shall, at its sole expense and in a professional and workmanlike manner, repair the Coxes’ R.V. gate (11/21/00 CWO item 43); v. Elliott shall, at its sole expense and in a professional and workmanlike manner, repair or replace the edging strip on the bottom shelf in the Coxes’ kitchen island (11/21/00 CWO item 46); w. Elliott shall, at its sole expense and in a professional and workmanlike manner, re-texture the ceiling in the Coxes’ master bedroom where necessary or appropriate (1/25/01 CWO item 3); and x. Elliott shall, at its sole expense and in a professional and workmanlike manner, re-attach the molding in the Coxes’ garage (1/25/01 CWO item 5). RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Commencing on the effective date of the Order entered in this matter, Elliott’s Class B license shall be suspended until the ROC receives written proof that Elliott has complied with one of the following alternative conditions: 1. Elliott has completed the corrective work identified in Conclusion of Law No. 15, above; OR 2. Elliott has entered into other mutually acceptable arrangements with the Coxes. If the ROC receives written proof that Elliott has complied with one of the foregoing conditions on or before the deadline identified above, then the above provided license suspension shall not take place.

Done this day, September 7, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ ----------------------- [1] Although the Coxes offered countervailing evidence consisting of quotes they received from other roofing contractors (Exhibits 17-19), that evidence constituted hearsay which the Administrative Law Judge deemed less reliable and less probative than Inspector Purchase’s testimony.

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