ALJDEC

01F-F0260-ROC · Registrar of Contractors · 2002-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2002 APPEARANCES: Complainants William and Carole Dutcher were present. Bruce Jackson appeared on behalf of Respondent Jackson’s Upper Verde Builders. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Jackson’s High Desert Builders dba Jackson’s Upper Verde Builders 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 Jackson’s High Desert Builders dba Jackson’s Upper Verde Builders (“Jackson’s”) is the holder of a Class KB-02 license (No. 152628) issued by the Registrar of Contractors (“ROC”). Bruce Jackson is Jackson’s owner and qualifying party. On or about February 5, 2001, Complainants William and Carole Dutcher (the “Dutchers”) entered into a contract with Jackson’s for the construction of a studio addition and garage to their existing residence. The original contract price was $68,400.00. See Exhibit A. The total contract price was increased to $79,151.00 due to the addition of approximately 16 change orders. All but $4,880.00 has been paid on the contract. Of this amount, only $595.00 remains to be paid on the subject concrete flooring. In a complaint to the ROC dated June 18, 2001, the Dutchers alleged several deficiencies in the construction of the studio and garage for which they believed Jackson’s was responsible. Specifically, the Dutchers alleged the following, “Studio floor - colored, stamped, stained - to look like sandstone - not satisfactory - also cracks.” 5. ROC Inspector Mark Schweiger investigated the Dutchers’ complaint. 6. Inspector Schweiger scheduled a jobsite inspection for June 29, 2001. The Dutchers, Bruce Jackson, and the concrete subcontractor, Paul Dudley were present for that inspection. 7. On July 2, 2001, following the jobsite inspection, Inspector Schweiger issued a Corrective Work Order (“CWO”) under which the ROC gave Jackson’s days to take the following corrective action, “the concrete floor does not appear to meet Industry Standards due to hairline cracks that are not repaired and an aesthetic appearance that does not appear to match the example reasonably close. Correct by appropriate means.” 8. The evidence of record established that Jackson’s hired Paul Dudley, a concrete subcontractor, to perform the concrete flooring work on the Dutcher’s addition. Mr. Dudley was to pour the concrete and perform a stamping process resulting in a concrete floor that appeared to be flagstone. 9. The evidence of record established that cracks were present in the concrete floor, and that the floor did not look as the Dutchers were led to believe it would look. The floor was the wrong color and the stamping process that Mr. Dudley used did not result in the flagstone pattern that the Dutchers chose out of the brochure presented to them by Jackson’s and Mr. Dudley. 10. The evidence of record further established that Mr. Dudley was not licensed to perform residential concrete work at the time Jackson’s hired him to perform the work at the Dutcher’s home. Mr. Dudley has since obtained his residential contractor’s license. 11. Mr. Jackson acknowledged at hearing that cracking in the concrete flooring did occur. However, Mr. Jackson also testified that he believed the cracking to be “normal” and that Mr. Dudley, not Jackson’s, should be held responsible for the deficiencies in the concrete flooring. 12. Mr. Jackson testified, as to the CWO, that the Dutchers would not allow Mr. Dudley access to the jobsite to perform corrective work due to a dispute between the Dutchers and Mr. Dudley. In contrast, the Dutchers testified that Mr. Dudley walked off the job for no reason and that they would have allowed him to return to perform remedial work. 13. Mr. Jackson further testified that he contacted three concrete subcontractors to perform the repair work, and none would accept the job for fear of liability for another subcontractor’s initial work. 14. The Administrative Law Judge finds, based on the evidence of record, that Jackson’s, as the general contractor for the project, is ultimately responsible for all of the work performed on the project, including that of the subcontractors. Jackson’s is also charged with the responsibility of contracting with properly licensed subcontractors. 15. The evidence of record established that Jackson’s did not perform any remedial work at the Dutchers’ home after the CWO was issued. 16. The Dutchers testified that due to Jackson’s noncompliance with the CWO, they were compelled to hire two subcontractors to perform the corrective work. The credible evidence of record established that the Dutchers paid $3,300.00 to have the corrective work performed on the studio floor, and $2,300.00 to have the corrective work performed on the garage floor. See Exhibits 1 and 2. CONCLUSIONS OF LAW In this proceeding, the Dutchers bear the burden to prove, by a preponderance of the evidence, that Jackson’s is subject to discipline for violations of A.R.S. § 32-1154 (A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its November 30, 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 Dutchers met their burden of proof as to all three of the ROC’s charges. 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 Jackson’s with a violation of A.A.C. Rule 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 Administrative Law Judge concludes, from the evidence presented, that Jackson’s failed to perform work at the Dutchers’ home in a professional and workmanlike manner with respect to the concrete flooring, and in so doing violated A.A.C. R4-9-108, and therefore violated A.R.S. § 32-1154(A)(3). 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 Jackson’s committed a wrongful act that substantially injured the Dutchers by failing to perform the concrete flooring in a professional and workmanlike manner as evidenced by its improper color, the improper stamping process, and the cracking. Further, Jackson’s contracted with an unlicensed contractor for the performance of this work. This fact may have ultimately led to the deficiencies in the concrete work. Therefore, Jackson’s violated A.R.S. § 32-1154(A)(7). 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 Jackson’s failed to comply with the ROC’s July 2, 2001 CWO without valid justification, and therefore violated A.R.S. § 32-1154(A)(23). Based on the foregoing, it is appropriate for the ROC to impose discipline against Jackson’s license. The ROC’s November 30, 2001 Citation and Complaint advised Jackson’s that in the event of a finding of a violation against it, Jackson’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 Jackson’s in the ROC’s official records. Those records revealed that Jackson’s has not been the subject of any ROC disciplinary orders within the past two years. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Jackson’s Class KB- license should be suspended. The ROC’s authority in disciplinary 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 Jackson’s license without providing a condition to reduce or eliminate same. 10. Upon consideration of all the evidence, the Administrative Law Judge concludes that it is reasonable to condition Jackson’s license suspension upon the payment to the Dutchers in the amount of $5,005.00 ($5,600.00 - $595.00, the amount remaining to be paid on the flooring), representing the cost to the Dutchers to have the remedial work performed on the concrete flooring. RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that Jackson’s Class KB- license shall be suspended until the ROC receives written proof that Jackson’s has paid or tendered the sum of $5,005.00 to the Dutchers. It is further recommended that if Jackson’s pays or tenders the sum of $5,005.00 to the Dutchers on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and Case No. F01-0260 shall be closed.

Done this day, March 11, 2002.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors 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