ALJDEC

01F-1525-ROC · Registrar of Contractors · 2001-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2001 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Jason Homoki. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Evidence of record demonstrated that Complainant was experiencing water damage to a specified section of the back of his home, due to the fact that the existing flagstone patio installation was installed too high, thereby allowing water to pond against the foundation of the home. Instead of removing the flagstone patio, Complainant elected to retain the services of Respondent for the purpose of installing a deco-drain between the house and the flagstone. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the finding below.

2. The applicable contract was for a total of $552.00. Complainant paid a down-payment of $276.00 and although Respondent has completed his work on the project, Complainant has refused to pay the outstanding balance ($276.00) on the contract, due to the deficiencies that he contends exist in Respondent’s workmanship.

3. The parties entered into the contract on or about November 30, 2000 and the work was performed by Respondent shortly thereafter. As aforementioned, once the job was completed Complainant observed what he believed were deficiencies in Respondent’s workmanship. Complainant immediately contacted Respondent in order to have Respondent return to the property to effectuate remedial work. Complainant contends that Respondent refused to return to the jobsite and was verbally abusive to him. Thus, on December 8, 2000 Complainant filed the instant complaint with the Registrar of Contractors.

4. The weight of the evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Although the contract provides that the deco-drain shall be “…even with finish floor at doors,” it was shown that the deco-drain is not set level with the finish floor at either the Arcadia door entrance or the garage door entrance. Notwithstanding Complainant’s contention that the term “finish floor” refers to the flagstone, it is determined and held that said phrase refers to the level of the floor of the home and garage. Thus, Respondent shall correct this deficiency in the appropriate manner.[1] b. Two areas of the Arcadia door concrete threshold were chipped during the deco-drain installation. c. Although not an item at the original jobsite inspection, performed by the assigned inspector for the Registrar of Contractors, there are two specified areas (by the palm tree and left side of the Arcadia door) of the deco-drain installation where there is separation of the deco- drain from the mortar bed that was shown to be greater than 1/8 inch. It must be noted, by way of mitigation, that this deficiency was not observed by the inspector until the time of the “pre-hearing” jobsite inspection and Respondent had no prior notice of this deficiency. d. In the course of performing the deco-drain installation project, Respondent significantly bent the weep screed on the north west corner of the home. After Respondent refused to return to the jobsite, Complainant retained the services of others to effectuate a repair of the damaged weep screed on the north west corner. In this regard, Complainant expended the sum of $200.00. Although Complainant claims entitlement to restitution for this expenditure and presented a copy of the applicable invoice, this Tribunal is unable to determine whether said cost was appropriate or excessive. [2] Moreover, it should be noted that Complainant has a remaining balance on the contract which is in excess of the $200.00 repair cost.

5. As aforementioned, a jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Evidence of record demonstrated that from the time Complainant filed the instant complaint, he has consistently denied Respondent access to his home to perform any required remedial work.

6. Although Complainant’s concerns, frustrations, and aggravation regarding the problems he has perceived in Respondent’s workmanship are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Based on Complainant’s continuing denial of access after the filing of the instant complaint, Respondent cannot be found to have violated the charged provision of the State’s Contracting laws regarding any failure to comply with the above-described directive issued by the Registrar’s assigned inspector.

7. Notwithstanding Complainant’s continuing objection to having Respondent perform any repair work on his property, the instant hearing record failed to establish any grounds sufficient to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work.

8. All other enumerated items of the complaint, presented at the instant hearing, were either accepted by Complainant, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

9. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary penalties on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-21 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 4(a) through 4(c), above. Any unreasonable denial of access by Complainant, which prevents Respondent from accomplishing the required remedial work, shall be deemed to be tantamount to Respondent’s compliance with the Order entered in this matter. It is further recommended that if Respondent accomplishes the above- described corrective work or is unreasonably denied access on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation, together with the Complaint upon which it is based shall be closed.

Done this day, April 19, 2001

______________________________________ Mark A. Silver Administrative Law Judge

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 ___________________________

----------------------- [1] Notwithstanding the finding that “finish floor” is determined to refer to the floor level of the home and not the flagstone patio, it is suggested that in the event Respondent is allowed to accomplish the required remedial work in this area and Complainant continues to desire that the deco-drain be placed at the same level as the flagstone, in the interest of goodwill it is suggested that Respondent accommodate Complainant’s desires if, and only if, there would be no increase in cost or difficulty to accomplish said repair. [2] No other bids to accomplish the repair were presented for comparison and the contractor that performed the repair work did not appear at the hearing to testify as to the basis for the cost. It is a standard policy of the Residential Contractors’ Recovery Fund to examine several bids before it agrees to pay out on a Recovery Fund claim and this Tribunal would typically require similar proofs before ordering restitution, as a means for a contractor to avoid otherwise appropriate disciplinary penalties.

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