ALJDEC

01F-1417-ROC · Registrar of Contractors · 2001-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10, 2001. APPEARANCES: Complainant represented herself. Respondent Muleshoe Construction was represented by Jared Bennett, Esq. Respondent Adept Painting was represented by its owner and sole proprietor, Nestor Cifuentes. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

In this matter, Complainant alleges that Respondent Muleshoe Construction has violated five statutes, namely, A.R.S. § 32-1154 (A)(1)(abandonment of a contract without legal excuse); A.R.S. § 32-1154 (A)(2)(departure from or disregard of plans or specifications; A.R.S. § 32- 1154 (A)(3)(failure to comply with any rule adopted by the Registrar, in this case, the rule requiring all work to be completed in a workmanlike manner in conformity with A.C.C. R4-9-108); A.R.S. § 32-1154 (A)(7) (wrongful conduct that results in substantial injury to another person); A.R.S. § 32-1154 (A)(9)(failure of the licensee to complete a construction project for the price stated in the contract); and A.R.S. § 32-1154 (A)(14)(knowingly entering into a contract with a contractor not duly licensed in the required classification). Complainant also alleges that Respondent Adept Painting violated three statutes, A.R.S. § 32-1154 (A)(1)(abandonment of a contract without legal excuse); A.R.S. § 32-1154 (A)(3)(failure to comply with any rule adopted by the Registrar, in this case, the rule requiring all work to be completed in a workmanlike manner in conformity with A.C.C. R4-9-108); and A.R.S. § 32-1154 (A)(7) (wrongful conduct that results in substantial injury to another person). Based on the evidence adduced at the hearing, the undersigned finds that Complainant has proven that both Respondents violated A.R.S. § 32-1154(A)(3) by failing to complete some items in a workmanlike manner. Furthermore, Respondent Muleshoe violated A.R.S. § 32- 1154(A)(7) by failing to prepare some of the subfloors for tiling, failing to return ceiling fans, and failing to install new air vents. Complainant has failed to carry her burden of proof with respect to any of the other allegations. FINDINGS OF FACT 1. In November, 1998, Complainant’s home sustained water damage as a result of a toilet overflow. The water damage resulted in mold growth through certain parts of the home which in turn generated the need for mold remediation. In June, 1999, Complainant contracted with Respondent Muleshoe (hereinafter Muleshoe) to carry out the mold remediation. On August 9, 1999, Complainant contracted with Muleshoe to do a substantial part of the restoration and remodeling of the home. Respondent Adept Painting (hereinafter Adept) was hired by Muleshoe as a subcontractor to complete the painting at Complainant’s home. Adept did not contract with Complainant. 2. The original contract between Muleshoe and Complainant called for Muleshoe to complete substantial remodeling to all rooms in the home, as follows: A. In the den, Muleshoe was to replace and texture the ceiling, paint the ceiling, replace the carpet pad, replace the carpet, replace base molding, replace wood case, replace sheetrock walls, prime and paint the walls, replace and paint the “HC” door, and replace the sliding window; B. In the den closet, Muleshoe was to paint the ceiling, repair sheetrock, finish the sheetrock, paint the walls, replace bi- fold doors, and replace and finish the base molding; C. In the guest bathroom, Muleshoe was to replace the toilet, replace the base molding, scrape and prepare the floor for adhesion of the new flooring, replace the vanity, replace the ceramic countertop, replace the sink, replace faucets, replace the medicine cabinet, replace and repaint a pocket door, paint the walls and paint the ceiling; enlarge the shower to the full width of the room and complete the concomitant rebuilding and expansion of the shower and surrounding sheet rock; D. In the master bedroom, Muleshoe was to replace carpet and pad, replace base molding, finish base molding, replace and retexture the sheet rock, paint the room, replace and refinish a door, and replace the sliding window; E. In the master bathroom, Muleshoe was to paint the ceiling and walls, install mirrored bypass doors, replace the carpet and the pad, replace and finish the base molding; F. In the first bedroom, Muleshoe was to replace the carpet and pad, replace and refinish base molding, replace and retexture sheet rock, paint the room, replace and refinish the door, take out and reinstall the ceiling fan, build a drawer set at the window, and replace the window; G. In the first bedroom closet, Muleshoe was to paint the walls, install a mirrored bypass door, and enlarge closet; H. In the second bedroom, Muleshoe was to replace carpet and pad, replace and refinish base molding and sheetrock, repaint the room, replace and refinish the door, replace the window, and take out and reinstall the ceiling fan; I. In the second bedroom closet, Muleshoe was to repair and retexture the sheetrock, replace carpet and pad, repaint, and remove and reinstall the extant mirrored bypass doors; J. In the hall bathroom, Muleshoe was to scrape and prepare the floor for new flooring, replace the vinyl flooring, replace and refinish the base molding and sheetrock, replace the door, replace the vanity, replace the sink, countertop and faucet, replace a glass wall mirror, replace the bathtub and the tub surround, install tub bypass doors, and paint; K. In the hallway, Muleshoe was to replace carpet and pad, replace and refinish sheetrock, replace a cabinet, install an arch at the living room, and install rounded corner bead; L. In the hall closet, Muleshoe was to replace carpet and pad, replace and refinish base molding, and replace and refinish a door; M. In the living room, Muleshoe was to replace the carpet pad and carpet, replace and refinish the base molding, replace and refinish sheetrock, paint, replace a door unit, replace the window and the wood casing around the window, and remove and replace the ceiling fan; N. In the dining room, Muleshoe was to replace carpet and pad, replace and refinish base molding, replace the ceiling, install an archway between the living room and the dining room, install rounded corner bead, and remove and reinstall the ceiling fan; O. In the family room, Muleshoe was to repair the sheetrock, retexture the walls, replace carpet and pad, replace and refinish the base molding and a door, replace a sliding glass door, paint, and remove and replace the ceiling fan; P. In the kitchen, Muleshoe was to repair sheetrock, replace faucets, replace kitchen sink, replace the cabinets, replace the countertops, remove and reinstall the ceiling fan, replace the range hood, wall oven, electric range top, and dishwasher; Q. In the utility room, Muleshoe was to install sheetrock, paint the room, replace full height cabinet doors, paint cabinet, replace and paint door or doors (it was not made clear at the hearing how many doors are in the utility room); R. In the garage, Muleshoe was to replace, float , and texture the ceiling, replace the overhead door, and paint; S. On the exterior of the home, Muleshoe was to replace pine bevel siding, paint concrete block wall, pine fascia, a plywood soffit, and replace some areas of insulation; and T. Muleshoe was to repair some of the home’s electrical service and rewire stereo speakers. 3. The total amount to agreed upon between the parties as remuneration to the Respondent on this project was $44,173.10. The contract specifically calls for any changes to the contract to be made in writing. 4. It appears that there may have been as many as five change orders executed, but the evidence in this regard was not made clear by the parties at the hearing. The evidence adduced does show that at least three change orders were executed by the parties. The first change order, dated August 30, 2001, was executed to account for using upgraded windows chosen by Complainant. The cost of this change order was $2,469.15, of which Complainant was given credit for the purchase price of the windows, $2,133.96. The change order was accepted by both the Complainant and the Muleshoe. 5. The second change order was made on September 30, 1999, and deleted from the original contract Muleshoe’s obligation to install the cabinets in the kitchen, bathrooms, and hall, the floor covering, and the Formica countertops in the kitchen. It appears for the change order that the intent of the parties at that time was that other subcontractors would be retained by the Complainant to complete the work of the flooring, cabinets, and countertops. As a result of this change, an amount of $7,616.78 was deleted from the amount due to Muleshoe, thus bringing the total amount due down to $39,025.47 6. Almost from the outset of the remodeling, there was obvious friction between Complainant and Muleshoe. As early as August, 1999, the Complainant was unhappy with Respondent’s employees’ workmanship. Things deteriorated to the point that each side retained lawyers and postured for litigation. In a letter to Muleshoe from Complainant’s attorney, dated December 6, 1999, Complainant fired Muleshoe from the project based on Complainant’s belief that Muleshoe had unreasonably delayed the project and had failed to meet time deadlines for finishing the project. Thereafter, Muleshoe was not allowed any further access to the project. In turn, Muleshoe informed Adept that Muleshoe had been fired from the project and Muleshoe ordered Adept not to return to the project . 7. Complainant presented evidence that the windows that were installed by Respondent were not installed properly. Respondent at the hearing denied the allegation, stating that the windows were installed properly. The evidence on this was evenly split. Therefore, Complainant has not carried her burden of proof with respect to the installation of the windows. Furthermore, there was not sufficient evidence presented to show, as stated in the complaint, that Muleshoe contracted with a person or entity who was unlicensed. 8. It is clear from the contract involved that Respondent agreed to prepare the floor surfaces for the installation of the floor coverings but failed to do so. This amounts to a breach of the contract. However, the only evidence admitted at the hearing showed that Complainant incurred a charge in the amount of $100.00 to have the floor cleaned and scraped in order to prepare the concrete for the flooring installation. 9. The evidence fails to show that Muleshoe unreasonably delayed the project to the point that Muleshoe could have been considered to have breached the contract in that regard. Neither does the evidence show that Muleshoe failed to complete the contract for the price agreed upon between the parties. 10. Several items were not yet completed when the Respondent was told not to return to the home. The workmanship on some of these items, as demonstrated by the testimony of the Registrar of Contractor’s inspector, Joe Cotten, and the photographs admitted into evidence, fall below the minimum standards of workmanship required by A.A.C 4-9-108. Those items that fell below the workmanship standards are: A. In the utility room, the cabinet doors were not replaced as agreed upon by Muleshoe with 5/8 inch or 3/4 inch door fronts. Some of the contact paper that was left on the shelves and painted over is now coming up. The spring hinge pins in the fire door in that room were not installed. The ceiling fan and light was not replaced. Apparently, Muleshoe still is in possession of this ceiling fan and others belonging to Complainant which were removed form the house to perform the mold remediation. Muleshoe has agreed to return the fans.

B. In the kitchen, the drywall arch was uneven, the tape seam where the ceiling and wall meet is visible, the floor in the kitchen was not scraped or sanitized, and one of the electrical outlets was not tied into the ground fault interrupt circuit as it should have been; C. In the dining room, the casing on the Arcadia doors is not flush at the corners, there were some hairline cracks in the sheetrock that were visible, the painting was not well done on the Arcadia door casing, again the floor was not scraped and sanitized so that the tile could be set, D. In the family room, ceiling fans were not replaced; E. In the living room, non-paintable hinges were painted over; F. In the hallway, there was a gap in the drywall between the ceiling and the linen cabinets; G. In the hall closet, hinges were painted over which should not have been, and paper was left on the shelves; H. in the hall bathroom, on some surfaces dirt was not cleaned before painting and hinges were painted over; I. In the first bedroom, painting was not finished, contact paper was not removed before painting, was painted over, and is now peeling; J. In the second bedroom, the window seat was unfinished, old contact paper was not removed before painting, was painted over, and is now peeling, and an electrical switch cut out in the drywall was over cut; K. In the master bedroom, non-paintable hinges were painted over; L. In the master bathroom, there is a bubble in one drywall tape seam, the pocket door is not properly hung; M. In the den, non-paintable door hinges were painted over, the door painting was not properly finished, speaker wires were left exposed, and contact paper was left on the shelves, painted over, and is now peeling; N. Throughout the house, Muleshoe failed to provide new air vents as called for by the contract. 11. The ceiling fans were kept by Respondent Muleshoe and have not yet been returned to Complainant. Though Muleshoe indicates it is willing to return the fans, failing to return the ceiling fans in the first instance was wrongful. Furthermore, failing to comport with the contractual requirement to clean and scrape the subfloors and replace existing air vents with new air vents was wrongful. 12. The evidence also establishes that Muleshoe did not install a mirror in the hall bathroom, nor did it install mirrored bypass doors in the first bedroom, second bedroom, or master bedroom. In addition, several curtain rods were not reinstalled. These items were not installed because Muleshoe was fired from the job before they were installed. 13. The evidence is insufficient to demonstrate that Muleshoe was overpaid. 14. The undersigned has considered each respondents’ two year complaint history in arriving at the recommended decision on this matter. Furthermore, while not excusing the limited areas of workmanship problems, Complainant’s firing of the Respondents and refusal to allow any repairs mitigates the sanctions that should be imposed. CONCLUSIONS OF LAW 1. A.R.S. § 32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: (1). Abandonment of a contract or refusal to perform after submitting a bid without legal excuse for the abandonment or refusal. * * * (2). Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner . . . * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (9). Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract . . .. * * * (14). Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person not duly licensed in the required classification.

A.A.C. R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 3. The evidence as demonstrated in Findings of Fact Paragraph Ten above establishes that Muleshoe and Adept violated A.R.S. § 32-1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. 4. The conclusion that some of the work was not performed in a workmanlike manner is mitigated by the fact that Complainant fired Muleshoe from the job before correction of the poor workmanship could be undertaken.

5. As shown by Findings of Fact Paragraph Eight and Eleven above, the evidence shows by a preponderance of the evidence that Muleshoe engaged in a wrongful act as required by A.R.S. § 32-1154(A)(7). 6. The evidence, as shown by Findings of Fact Paragraph Nine above, fails to demonstrate that Respondent violated A.R.S. § 32-1154(A)(1) by abandoning the project. Work was continuing on the project when Complainant fired Muleshoe. 7. The evidence fails to show that Muleshoe violated A.R.S. § 32- 1154(A)(2) by failing to follow plans or specifications. 8. The evidence fails to show that Muleshoe violated A.R.S. § 32- 1154(A)(9). Muleshoe was not given the opportunity to complete the project as shown by the facts adduced at the hearing. 9. The evidence fails to show that Muleshoe contracted with a person to complete work outside the scope of that person’s license in violation of A.R.S. § 32-1154(A)(14). 10. The evidence fails to show that Adept committed a violation of A.R.S. § 32-1154(A)(7). When the party with whom Adept contracted, Muleshoe, ordered Adept to not go back to the job, Adept was obligated to follow that order. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent Muleshoe’s Class B License Number 078531 shall be suspended upon the effective date of the final order in this matter unless, prior to that time, written proof is submitted that (1) Respondent Muleshoe has completed appropriate and effective remedial work to the items designated in Paragraph Ten of the Findings of Fact, above, (2) has returned all appliances and ceiling fans belonging to Complainant, (3) has provided the mirror and

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mirrored bypass doors denominated in Findings of Fact Paragraph Twelve, above, (4) has paid restitution to Complainant in the amount of $100.00 for the cost incurred by Complainant in having the floors subfloors prepared for the tiling, and (5) has properly and in a workmanlike manner installed all ceiling fans, mirrored bypass doors, and the mirror for the hall bathroom. In the event that timely proof of the above is submitted, then the above described license suspension of Muleshoe’s license should not take place and the citation and complaint against Muleshoe should be closed. It is further recommended that Respondent Adept’s Class C-34 License Number 094379 shall be suspended on the effective date of the final order in this matter unless, prior to that time, written proof is submitted to the registrar showing that all areas of painting identified in Paragraph Ten of the Findings of Fact, including removal of the peeling contact paper and repainting of shelves wherein any such peeling paper is found, have been corrected in a workmanlike manner. In the event timely proof of the above repairs is submitted, then the above described suspension of Adept’s license should not take place and the citation and complaint issued against Adept should be closed. It is further recommended that Complainant be directed to accord respondents reasonable opportunity to enter the premises and complete the above described remedial work. It is further recommended that in the event Complainant denies either Respondent reasonable access to complete the remedial work, then this citation and complaint should be dismissed and no action should be taken against either respondent. Done this day, July ___, 2001

______________________________________ Gregory L. Hanchett Administrative Law Judge . . .

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

Registrar of Contractors Michael P. Goldwater 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