ALJDEC

01F-H0125-ROC · Registrar of Contractors · 2002-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 16, 2002 in Kingman, Arizona. APPEARANCES: Complainants Gerald I. and Margaret A. Kraft appeared, representing themselves. Qualifying party Bill Robertson appeared for Respondent Elegant Custom Homes, Inc., representing the company. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar) such that discipline be recommended against Respondent’s license. Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of Class B- License No. 096693 issued by the Registrar. 2. Respondent was the construction contractor for a new residence built in 1999 in Golden Valley, Arizona. 3. In November 2000, Complainants filed a formal complaint with the Registrar alleging several complaints against Respondent’s work, and attached various documents. Complainants alleged stucco walls cracking, a window buckling away from the glass, roof drains causing water to run down side of house, problems with an attic vent, an unsealed patio post, and the seal on the bottom of the front door. 4. In July 2001, Complainants amended their complaint to add “2 cracked tiles in the kitchen and dining area.” 5. After a scheduled job site inspection, the Registrar’s Inspector (Inspector), Bill Redman, issued a Corrective Work Order (CWO) on January 17, 2001. The CWO ordered Respondent to make repairs on several items: stucco cracks, the attic vent, the seal on bottom of the front door, and the cracked tiles in the kitchen, on countertop and to regrout to match as close as possible. 6. On January 29, 2001, Complainants and Respondent executed a written agreement that the stucco, vent and tile repairs would be postponed until warmer weather. The agreement stated “When warmer weather arrives and krafts are ready to have done Elegant Custom Homes, Inc. shall do repairs within ten working days of being notified.” 7. The complaint was subsequently closed at the Registrar’s office. 8. However, the repairs were not all completed, and in July 2001, Complainants asked that the matter be reopened and set for hearing. 9. On August 27, 2001, the Registrar issued its Citation and Complaint against Respondent alleging Respondent’s possible violation of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, A.23 and A.3, specifying A.A.C. R4-9-108. 10. In September 2001, Respondent filed its written answer to Registrar, denying “any violation of the states contracting laws. Items were corrected as directed by the registrar except the stucco repair which was agreed to do at a later time.” 11. The Registrar issued a default decision and order in this matter, and then issued its Order Quashing the prior default decision and order, based on a demonstration that the Respondent’s answer was timely filed. The matter was subsequently set for formal administrative hearing. 12. On November 6, 2001, the Registrar received Complainants’ supplemental letter, dated November 3, 2001, indicating “we had better file the rest of our complaint against [Respondent] since our case won’t be heard until the 16th of Jan. 2002 and our 2 years will be up the 25th of Nov. 2001.“ This letter was not copied to the Respondent, and did not state the position of the Respondent with regard to amending the complaint. 13. This letter recites items stated to have been discussed with Bill Robertson via phone on several occasions, and lists: Crack in bathroom shower floor. Toilet seat screws stripped out and gone down the drain. cracked tiles in kitchen. cracked tiles in laundry room. … Front door still not fixed.

14. Additionally, the letter states there were new problems, and lists: Carpet in master bedroom is buckled up and needs to be re stretched. outside lights are tarnishing and turning black. Trim paint around garage door is coming off and wood is cracking. Patio screen door locks when closed from the outside. Many more cracks on the exterior walls.

15. On November 7, 2001, the Registrar forwarded the Complainants’ letter to this Tribunal for review and consideration. The Tribunal issued its ORDER Amending the Complainant’s filed complaint to include the items listed in the Complainant’s letter dated November 3, 2001. 16. On December 31, 2001, Respondent filed a Motion to Continue the matter with the Registrar, indicating that they had not been notified of the additional items “but are willing to correct if items are seen to need corrections.” This letter was not copied to Complainants, and did not state the position of the Complainants. 17. On January 2, 2002, this Tribunal denied the Respondent’s Motion to Continue, for the reason that Respondent had been under a directive since January 2001 to make certain repairs on its undisputed items. 18. At the formal hearing in this matter, Complainants testified that they had called Respondent repeatedly from April 2001 to June 2001 regarding the stucco repairs, and that Respondent had neither responded nor come to make the repairs. Complainants testified that they then wrote a letter in June 2001, and again tried to get Respondent to come and make repairs, but that he had again never called or came to make the repairs. Complainants were upset that only that same week, right before the hearing, Respondent was actually making efforts toward the repairs, and Complainants were noticeably frustrated by the Respondent’s delays and time passage. 19. The Registrar’s Inspector testified that the repairs on the CWO had been taken care of, with the exception of the attic vent and the stucco repairs, which Respondent had previously requested to do in the Spring of 2001. 20. Based on his January 8, 2002 pre-hearing inspection, the Inspector testified that the stucco cracks had increased in size and nature, and were excessive on the home. The Inspector testified that tiles in the kitchen and laundry had continued to crack. The Inspector testified that the master bedroom carpeting had come loose and needed to be restretched. The Inspector testified that he was unable to determine the cause of the several cracks in the shower floor, but was aware that the shower door had fallen and the glass had broken in the shower. The Inspector testified that the screws were out of the toilet seat. The Inspector testified that the paint was peeling on the garage trim. The Inspector testified that the light fixtures were not a workmanship issue, but would be a manufacturer warranty issue. The Inspector testified that the lock on the patio door was defective, and locked even when the door was closed. The Inspector testified that the door seal had been fixed, but that he could still see light. 21. Complainants testified that the shower door had come off the roller, fallen and broken in the shower. Complainants testified that Respondent had replaced the door, but that now the floor had these cracks. Complainants testified that they thought Respondent was securing a fiberglass repair man for the repairs. 22. In response to query, Complainants testified that the front door seal was fixed, the toilet seat had been replaced, the screen door latch had been replaced, and the workers had painted around the garage door. 23. Respondent testified that they had agreed to do the original repairs, but had not gotten them done over the summer. Respondent testified that they were, now, in the process of doing the repairs. Respondent testified that they had patched and begun to paint the stucco, but needed to complete those repairs. Respondent testified that they had replaced the toilet seat, even though they believed this not to be their responsibility. Respondent testified that they took care of the rest of the items except the tiles in the kitchen and laundry and the carpet restretching. Respondent testified that there were now quite a few tiles that had cracked, some all in a pattern which were continuing to spread, and that the tiles needed to come out so they could assess the crack in the floor, repair if needed, and replace tiles. Respondent testified that the shower floor was not their responsibility, and that he had meant that he would find a person to refer the Complainants to for repairs. 24. Respondent argued that there should be no penalty, because they are willing to take care of the recently mentioned items and would have had them done if they had known about them. 25. Complainants argued that there should be a consequence of some sort because they had had to go through this all summer and since, and so that Respondent would not do this to others. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: 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. … 23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification with in a reasonable period of time after receiving the written directive from the registrar. …

/// /// CONCLUSIONS OF LAW 1. Credible testimony, uncontroverted, showed the existence of a major delay in the repairs of the stucco. In January 2001, the parties came to an appropriate agreement for the repairs to be done in warmer weather. Even if it could be said that Respondent knew nothing of the repeated calls from April 2001 to June 2001, it cannot be said that, after the Complainant’s June 2001 letter, that Respondent was unaware of the need to address the stucco repairs per his agreement. Ten days had long passed, with no attempts to repair the stucco. Further, the attic vent remained unrepaired also, in contravention of Respondent’s November 2001 Answer to the Registrar’s Citation and Complaint. 2. Clearly the delays of Respondent caused not only unnecessary friction with regard to this matter, but kept this complaint active at the Registrar’s office. The delays alone, a complete year without any contact to Complainants regarding the directed stucco repairs can be construed to be a wrongful act, and is clearly a failure to make necessary directed repairs, in violation of A.R.S. §§32-1154-A.7, 32-1154.A.23 and 32- 1154.A.3. RECOMMENDED ORDER In view of the foregoing, 1. IT IS RECOMMENDED commencing on the effective date of the Registrar’s ORDER, that the Respondent’s Class B- license be suspended for one week until the following remaining repairs are completed: stucco cracks repaired and areas (or walls, if necessary) repainted, as close as possible; cracked tiles replaced, and regrouted, as close as possible, with the additional floor preventive repair if needed; master bedroom carpet restretched; and, attic vent repaired and repainted. 2. IT IS FUTHER RECOMMENDED that if Respondent has completed all repairs and the parties have, by written joint agreement, so notified the Registrar, on or before the effective date of that ORDER, then the above recommended license suspension shall not take place and Citation No. H01- 0125 shall be closed. RECOMMENDED this day, February 5, 2002.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this _____ day of February, 2002 to:

Registrar of Contractors Mr. 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