ALJDEC

01F-2089-ROC · Registrar of Contractors · 2001-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2001 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through one of its partners, 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. Complainants purchased new home construction from Respondent. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Evidence presented at the hearing established that Respondent originally constructed the home in question for one of its partners. Complainants found the home, already under construction, at the framing stage and entered into a contract with Respondent for the purchase of said home.

3. At the outset of the scheduled hearing, Complainants averred that the issue involving the drip irrigation system had already been corrected and thus, there was no need to consider this issue at the instant hearing.

4. Complainants, Respondent and the assigned Agency inspector all presented testimony at the instant hearing, along with specified documentary evidence. The testimony of Complainants and the assigned Agency inspector was found to be more persuasive than that presented by Respondent on the following issues and thus, same were found to constitute substandard and unacceptable workmanship attributable to Respondent’s work on the home:

a. Double French doors near the kitchen are out of adjustment and allow water to enter the home during rainfall. In addition, there are splits and gouges that have either not been repaired or repaired in a very sloppy, inadequate and unacceptable manner. Drywall adjacent to the doors shows water staining due to the water leakage from the doors. b. There is a ¾ inch gap in the joint wherein the front entry walkway abuts the front porch area. In addition, there appears to be a degree of vertical displacement in said area. c. Compound cracking is observed in a specified area of the front entry walkway and said cracking was shown to be up to a ¼ inch in diameter. d. A number of windows installed in the home have some type of unacceptable scratching in the glass. e. A number of windows in the home were installed incorrectly, as manifested by the weep holes being on the interior side of the home instead of the exterior. f. The applicable plans and specifications call for obscure glass for a window over a specified bathtub. Notwithstanding said requirement, Respondent, without Complainants’ consent, installed clear glass. g. Notwithstanding prior efforts of Respondent to terminate the water leakage from the deck over the garage and family room, water leakage continues, causing specified interior water damage in the garage and family room, along with significant efflorescence on specified exterior areas around the garage. In addition, a stairwell adjacent to the garage also shows signs of water leakage and efflorescence. h. Despite the fact that the applicable plans and specification call for the installation of a barbecue grill, none was provided by Respondent. i. The cultured marble installed in a specified bathroom shower fails to come even close to matching the cultured marble installed in the sink area of said bathroom. This failure to match the cultured marble installations constitutes an aesthetically unacceptable result.

5. 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. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on some of the items, substantial compliance was not accomplished.

6. There were other items on Complainants’ filed complaint which were not shown by the weight of the evidence to constitute violations of the applicable charged statutes and rules and, as such, do not require Respondent to perform remedial work. These items upon which Complainants did not sustain the requisite burden of proof are included in the following:

a. Complainants are concerned about the fact that lights in certain rooms of the home dim when the vacuum cleaner is turned on and stay dim during the operation of said device. Respondent testified that this problem only seems to occur when the vacuum is plugged into a 15 volt receptacle and thus, that would explain the dimming of the lights while a vacuum cleaner, which draws 12 volts, is in operation. The assigned Agency inspector was unable to cite any violation of applicable electrical code or workmanship standards. Thus, Complainants were unable to present any evidence sufficient to demonstrate that this condition is indicative of a deficiency in their electrical system. b. Complainants claimed entitlement to specified stone accents on sections of the driveway. Respondent testified that the applicable plans and specifications do not require this treatment on the driveway concrete. Complainants were unable to demonstrate any written document to support their claim. c. Sharply conflicting testimony was presented by the parties regarding any agreement to provide specified walkway lights for the patio deck and walkway such that no basis for the disbelief of either sides’ version of the facts exists. Moreover, the plans do not specify a particular type of light, Complainants received the type of lights which had been ordered by Respondent during the construction of the home for one of the partners, and Respondent presented credible testimony indicating that the type of light fixtures desired by Complainants were not available for an exterior lighting situation. d. Although Complainants question the grading of the rear yard and a specified drainage “wash” adjacent to the driveway, they failed to present any legally sufficient testimony or evidence necessary to establish a construction deficiency in said areas.

7. During the course of the instant hearing, Complainants attempted to introduce evidence regarding cracking of the driveway. This issue was shown not to have been enumerated in the filed complaint and not an issue examined by the assigned inspector at the jobsite inspection. Thus, based on basic principles of due process, this issue was disallowed from consideration at this hearing. Nevertheless, Respondent is now on notice referable to this issue and if the parties are unable to resolve this issue, nothing in this ruling would serve to prevent Complainants from filing an additional complaint with the Registrar of Contractors on said issue.

8. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled since April 10, 2001. Such license cancellation does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already canceled license.

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 that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

10. Although Complainants concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of their new home 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.

11. The instant record failed to establish any grounds 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. However, Respondent is on notice that a homeowner need not suffer through a series of seemingly endless ineffective and/or inadequate repairs. Respondent acts at its peril to perform remedial work that is less extensive or expensive than necessary. Thus, Respondent will have one, and only one, final opportunity to accomplish repairs on those items wherein prior remedial work has failed.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on the tile deficiencies described in Findings of Fact 4(a) through 4(i),above, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class B license shall be placed on a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, August 13, 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 ___________________________

-----------------------

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