ALJDEC

01F-M0219-ROC · Registrar of Contractors · 2001-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2001 APPEARANCES: Complainant Alan Wittig appeared on his own behalf. John Cline, Esq. represented Respondent Potts Construction, Inc. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent Potts Construction, Inc. 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 Potts Construction, Inc. (“Potts”) is the holder of a Class B license (No. 117945) issued by the Registrar of Contractors (“ROC”). Daniel Potts is Potts’ qualifying party. In June 1998, Potts entered into a contract with Complainant Alan Wittig and his wife Kathy to construct a new home for the Wittigs in Queen Creek, Arizona. On August 22, 2000, Mr. Wittig filed a complaint against Potts with the ROC alleging a number of deficiencies in the construction of his home for which he believed Potts was responsible. Mr. Wittig’s specific complaint allegations were as follows: 4. Cabinet in master bathroom ( part of cabinet under sink cut away to allow connection of water lines.

5. Crack in kitchen floor (probably runs through great room also) ( water pipes and sewer pipes run through this section ( what kind of stress is being put on these & when will they break!

6. Toilet in second bathroom set too close to the wall.

7. Cabinets in kitchen are unevenly aligned and there are gaps on the northwest and southwest of cabinets.

8. Baseboard corners in master bath and great room are coming off.

9. Wall poorly patched near toilet in master bath.

10. Door in pantry not properly hung (you can see the track)

11. Wrong color paint used on outside of the house after repairs were done

12. Grout around fireplace is uneven

13. Countertop not properly fitted to cabinets in kitchen (or vise versa) (sic)

14. Patio screen door (still) does not fit properly (gap at top when closed)

ROC Inspector Dennis Cook investigated Mr. Wittig’s complaint. On September 27, 2000, Inspector Cook conducted a jobsite inspection at the Wittigs’ home. On October 2, 2000, Inspector Cook issued a Corrective Work Order (“CWO”) under which the ROC gave Potts 15 days to correct a number of the deficiencies alleged by the Wittigs. As of the hearing date, the following items from the CWO remained at issue: 1. Move water valve, and properly repair notch in shelving under master bath sink.

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4. Contractor to correct alignment at bottom, and gap at top of northwest corner of upper kitchen cabinets.

5. Correct loose base moldings in master bath.

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7. Correct uneven grout lines at sides of fireplace tile.

The Water Valve (CWO Item 1) The evidence presented at hearing demonstrated that the hot and cold water lines for the master bathroom sink in the Wittigs’ home penetrated the bathroom wall in such a way that when Potts’ cabinet installer installed the bathroom cabinetry, one of those lines (the evidence was unclear as to which) lined up behind the cabinet drawers instead of behind the open cabinet space directly under the sink. To remedy this situation, Potts’ cabinet installer cut a notch in the interior cabinet panel to provide room for the water line and valve. [See Exhibit 10] Although the placement of the water line and valve in this fashion did not interfere with the workings of the cabinet drawers, the valve was set back in the notch and the installation was unsightly. In response to the CWO’s directive as to this item, Potts extended the valve outwards into the open cabinet space under the sink, and patched the notch. [See Exhibit 11] At hearing, Inspector Cook credibly testified that the repair of this item met the minimum workmanship standards applicable to licensed contractors in the state of Arizona. The gravamen of Mr. Wittig’s complaint regarding this item is that in Mr. Wittig’s view, the hot and cold water lines should have penetrated the wall in closer proximity to each other, and under no circumstances should one of those lines have had to penetrate the cabinetry. Mr. Wittig opined that the appropriate repair would have been to run the line further through the wall, thus allowing penetration to occur closer to the second water line (and away from the interior cabinet panel). Inspector Cook credibly testified that there is no standard distance for the separation of sink water lines, and that he has seen plumbing runs in other locations where the water line penetrates a cabinet panel. Inspector Cook did not find the installation of the water lines under the Wittigs’ master bathroom sink, as corrected, to constitute workmanship below the applicable minimum workmanship standards. The Administrative Law Judge found Inspector Cook to be the most credible witness on the issue of placement of the water lines under the Wittigs’ master bathroom sink, and finds, based on Inspector Cook’s testimony, that as corrected, Potts’ workmanship on the water lines under the Wittigs’ master bathroom sink meets minimum workmanship standards. The Kitchen Cabinets (CWO Item 4) The Wittigs’ kitchen cabinets were installed in a “U”-shaped pattern around the south, west and north walls of the Wittigs’ kitchen. The open end of the “U” faces in an easterly direction. Thus, the two corner areas of the Wittigs’ cabinets can be referred to as the southwest corner and the northwest corner. The Wittigs’ kitchen cabinets were custom-designed, built and installed by Desert Hills Enterprises, Inc. (“Desert Hills”), a company based in Apache Junction, Arizona. According to the ROC’s official records, Desert Hills holds a Class C-30 license (finish carpentry). The Wittigs selected light oak cabinets for their kitchen with an upgraded white melamine interior. After Desert Hills installed the Wittigs’ upper cabinets, there existed a minor misalignment where two bottom sections of cabinets in the northwest corner abutted against each other. This area of misalignment occurred on the underside of the cabinets, behind the face frame, and was not directly visible. Connie Menefee, Desert Hills’ vice president, testified that when Desert Hills installs cabinets, its top priority is to ensure that all of the visible areas of the cabinets (i.e., the front faces) properly align with each other. Consequently, according to Ms. Menefee, there will sometimes occur areas of misalignment in less visible locations. Ms. Menefee testified that Mr. Potts contacted her to inquire what corrective work would be appropriate to respond to the ROC’s directive to remedy the misalignment. Ms. Menefee told Mr. Potts that an appropriate repair would be to “skin” the underside of the cabinet by attaching a piece of white melamine, cut to fit, to the affected section. Subsequently, Desert Hills provided the required piece of melamine to Potts, and Potts installed that melamine under the Wittigs’ cabinets in the northwest corner. Mr. Wittig asserted that Potts’ repair of the misalignment was inappropriate because (i) Potts did not consult with the Wittigs before making that repair, and (ii) the melamine that Potts installed is not flush with the cabinet frame (see Exhibit 9), and (iii) the melamine that Potts installed has visible nail holes and is flaking along the cut edges. The Administrative Law Judge found Mr. Wittig’s testimony on these points to be credible. The Administrative Law Judge finds, on the evidence presented, that the manner of repair that Potts selected for the misalignment (on the advice of Ms. Menefee) was appropriate; however, the execution of that repair was not appropriate and should be re-done by a qualified subcontractor (such as Desert Hills). Mr. Wittig also alleged that the kitchen cabinets were improperly installed due to the presence of gaps between the upper cabinets. These gaps, which are approximately 2 inches in width, occur in the northwest and southwest corners where the upper cabinets are joined together. [See Exhibits 5 and 6] Ms. Menefee credibly testified that the gaps between the Wittigs’ cabinets are present by design. According to Ms. Menefee, the gaps were created in part by the addition of partitions to the cabinets on the west wall that allowed Desert Hills to install longer shelves in those cabinets. Inspector Cook testified that the gaps between the Wittigs’ cabinets were not uncommon cabinet features, that their presence did not impair the cabinets’ function, and that they did not detract from the cabinets’ aesthetics. Mr. Wittig urged his opinion that the presence of the gaps was inappropriate, but did not present any credible evidence in support of this opinion. Mr. Wittig further opined that the gaps might allow items to fall through the cabinets, particularly items placed on top of the cabinets. The Administrative Law Judge finds, on the weight of the credible evidence, that Mr. Wittig failed to establish that the presence of gaps between his upper kitchen cabinets in the northwest and southwest corners constitutes either a design or construction defect. The CWO directed Potts to correct the gaps at the top of the kitchen cabinets. In light of the Administrative Law Judge’s findings set forth in Finding of Fact No. 25, above, the evidence does not support the issuance of this directive. However, Potts elected to comply with the directive by placing pieces of brown melamine on top of the cabinets (one piece for each corner) to cover the gaps, and, having elected to act, Potts obligated itself to perform its work in a workmanlike manner. The weight of the credible evidence demonstrated that Potts did not perform its corrective work in a workmanlike manner because it did not appropriately fasten the melamine to the cabinet tops. Therefore, this repair should be performed again. The Base Moldings (CWO Item 5) Potts installed a short run of molding around the base of a stub wall that separates the tub and shower area in the Wittigs’ master bathroom. Over time, the small pieces of molding that comprised that run became loose. In response to the CWO’s directive as to this item, Potts re-attached the molding pieces using silicone. Kathy Wittig testified that in her opinion, the molding pieces were not installed flush to each other, and that in general the corrective work on this item was not performed to her satisfaction. At hearing, Inspector Cook credibly testified that the repair of this item met the minimum workmanship standards applicable to licensed contractors in the state of Arizona. The Administrative Law Judge found Inspector Cook to be the most credible witness on the issue of the repair to the base molding, and finds, based on Inspector Cook’s testimony, that as corrected, Potts’ workmanship on the base molding in the Wittigs’ master bathroom meets minimum workmanship standards. The Grout Lines (CWO Item 7) The Wittigs did not offer any evidence as to the uneven grout lines in their fireplace tile. Instead, Ms. Wittig testified at hearing that she instructed Potts not to perform any work on the fireplace because, in her opinion, there was no way to correct the deficiencies. The Administrative Law Judge finds, based on Ms. Wittig’s testimony, that the Wittigs have elected to relieve Potts of any further responsibility for the uneven grout lines in the fireplace identified by Inspector Cook as requiring corrective action. Based on the evidence of record, the Administrative Law Judge finds that Potts failed to comply with the CWO with respect to item 4 (the kitchen cabinets). The Administrative Law Judge notes that Potts attempted to repair these cabinets. However, under the evidence presented, the Administrative Law Judge finds that Potts’ repairs were not performed in a workmanlike manner. There is no evidence in the record to suggest that Potts was incapable of performing the required corrective work in a workmanlike manner. Therefore, the Administrative Law Judge finds that no valid justification exists for Potts’ failure to have corrected CWO item 4. On March 27, 2001, the ROC issued a Citation and Complaint charging Potts with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action in response to a written directive from the ROC) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). CONCLUSIONS OF LAW In this proceeding, Mr. Wittig bears the burden to prove, by a preponderance of the evidence, that Potts 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 March 27, 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 Mr. Wittig met his burden of proof as to all 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 Potts with a violation of A.A.C. 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 weight of the credible evidence demonstrated that as to CWO item 4, Potts failed to perform its work in a professional and workmanlike manner, and in so doing violated A.A.C. R4-9-108. Therefore, Potts violated A.R.S. § 32-1154(A)(3). 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 Potts failed to comply with item 4 of the ROC’s October 2, 2000 CWO, and that no valid justification exists for that failure. Therefore, Potts violated A.R.S. § 32-1154(A)(23). 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 Potts committed several wrongful acts that substantially injured Mr. Wittig, including (1) failing to perform its work at Mr. Wittig’s home in a workmanlike manner, and (2) failing to comply with a written directive of the ROC to correct that work. Therefore, Potts violated A.R.S. § 32- 1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Potts’ license. The ROC’s March 27, 2001 Citation and Complaint advised Potts that in the event of a finding of a violation against it, Potts’ 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 Potts in the ROC’s official records. Those records revealed that Potts has been the subject of one ROC disciplinary order within the past two years, which disciplinary order arose from a separate complaint filed by Mr. Wittig against Potts involving the same property. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Potts’ Class B license should be suspended. The Registrar of Contractors’ authority in 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 Potts’ license without providing a condition to reduce or eliminate same. Upon consideration of all the evidence, the Administrative Law Judge concludes that it is reasonable to condition Potts’ license suspension upon completion of the following corrective work: n. Potts shall, at its sole expense, cause an appropriately qualified and licensed subcontractor to replace the melamine that Potts installed under the Wittigs’ kitchen cabinets; and o. Potts shall, at its sole expense, install and appropriately fasten new melamine to the tops of the Wittigs’ kitchen cabinets so as to cover the gaps in those cabinets. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Commencing on the effective date of the Order entered in this matter, Potts’ Class B license shall be suspended until the ROC receives written proof that Potts has complied with one of the following alternative conditions: 1. Potts has completed the corrective work identified in Conclusion of Law No. 13, above; OR 2. Potts has entered into other mutually acceptable arrangements with Mr. Wittig. If the ROC receives written proof that Potts has complied with one of the foregoing conditions on or before the deadline identified above, then the above provided license suspension shall not take place.

Done this day, July 11, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors 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