ALJDEC

01F-M0324-ROC · Registrar of Contractors · 2001-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2001. APPEARANCES: Audie and Terry Murphy appeared on their own behalf. Respondent was represented by its president, Dwayne Seiter. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ The issues in this case involve allegations that the respondent licensee violated A.R.S. §32-1154(A)(3)(failure to comply with any rule promulgated by the Registrar, in this case, the requirement that a contractor perform his work in accordance with the standards of workmanship set forth in A.A.C. R4-9-108), A.R.S. §32-1154(A)(7) (committing a wrongful or fraudulent act that results in substantial injury to another person), and A.R.S. §32-1154(A)(23)(failure to comply with a corrective work order). For the reasons that follow, the undersigned finds that Complainants have proven by a preponderance that Respondent violated each of these statutory provisions. FINDINGS OF FACT 1. In December, 1999, Complainants purchased a new home that had been built by Respondent in a subdivision in Casa Grande, Arizona. 2. Complainants noted several construction defects in the home. Complainants’ attempted to have Respondents repair the defects over a period of ten months, a prolonged period of time given the nature of the repairs that Complainants sought. The repairs were either not completed or poorly completed. 3. As a result of respondent’s failures to properly complete the sought after repairs, Complainants filed a complaint with the Registrar of Contractors on September 11, 2000. The Complainant alleged 38 construction defects that Complainant had sought to have repaired but which were not repaired by Respondent. 4. The Registrar’s Office assigned Inspector Ron Lamp to investigate the allegations of the complaint. Inspector Lamp conducted a job site investigation in the presence of the Complainants and a representative of Respondent. During the job site inspection, Inspector Lamp confirmed the following defects which evidenced work that fell below the standards of workmanship articulated in A.A.C. R4-9-108: 1. The front door threshold was in need of repair; 2. Voids by the irrigation control box needed to be filled; 3. A bolt which supports the hinge of the RV Gate needed to be replaced; 4. The front yard was not properly graded and the improper grading created improper drainage by the front door; 5. Some of the blocks on the perimeter block wall needed to be reset; 6. Stucco on the exterior wall near the dining room needed to be repaired; 7. The patio electrical receptacle needed repair (it apparently is improperly wired as any time something is plugged into it the circuit breaker is tripped) 8. The interior light switches near the patio door were improperly placed, having been placed next to non-operating side of the door instead of nearest to the operating side of the door; 9. Repair of the dishwasher and stove; 10. Repair of a shelf in one of the kitchen cabinets; 11. Repair of drywall cracks and earlier failed drywall repairs in various areas around the home; 12. Repair the operating rod for the dining room shade; 13. Adjust the master bedroom double doors so that they operated correctly; 14. Repair to the home’s concrete slab near the stem wall; 15. Install dividers for the bypass doors that had not been installed; 16. Caulk the bathtub in the main bath; 17. repair door and window trim; 18. Adjust the shower door in the master bathroom; 19. Repair stucco on the exterior wall near the home’s door. 5. As a result of these findings, Inspector Lamp issued a corrective work order to Respondent on October 4, 2000, directing Respondent to take necessary and appropriate action to ensure that the items listed above were corrected in a workmanlike manner. 6. During the ensuing months leading up to this hearing, some of the problems were corrected and some were not. At the prehearing inspection conducted in March, 2001, Inspector Lamp found that the following items had not been corrected: A. The RV Gate had not been repaired; B. The drainage problem in the front yard had not been corrected; C. The patio receptacle had not been repaired and continued to cause the circuit breaker to trip whenever the receptacle is used; D. The improperly placed light switches near the patio door had not been corrected; E. The dividers for the bypass doors had not been installed; F. The master bedroom bath tub had not been caulked; G. The exterior window trim on the master bedroom window had not been repaired; H. The exterior trim that had to be repaired on the outside of the home as a result of the corrective work order had been replaced, but it had not been painted; I. The exterior stucco had also been repaired but had not yet been painted. 7. Complainants have experienced a contractor who, although presently desirous of properly completing its work, has in the past demonstrated an indifference to proper completion of the project. This indifference is manifested in the fact that the repairs sought, with perhaps the exception of properly locating the lighting switches near the patio door, are relatively minor. Nevertheless, well over one year has elapsed since Respondent was first contacted to effect the repairs and they have not been completed. 8. The undersigned has considered Respondent’s two year complaint history in arriving at the recommended decision in this case. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (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 within a reasonable period of time after receiving a written directive from the registrar.

A.A.C. R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 3. The evidence as demonstrated in Findings of Fact Paragraphs 4 and above establishes that Respondent violated A.R.S. §32-1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. 4. The evidence also establishes that Respondent engaged in a wrongful act as required by A.R.S. §32-1154(A)(7). Respondent has been excessively tardy in completing the repairs to the problems outlined above. It does appear, however, that Respondent is now genuinely interested in seeing that the necessary repairs are completed in a timely fashion. This conduct has resulted in substantial injury to Complainants. 5. The evidence further establishes that Respondent violated A.R.S. § 32-1154(A)(23) by both failing to comply with the corrective order issued by the Registrar and failing to do so within a reasonable period of time. In mitigation, many of the issues raised in the original corrective work order have been properly addressed. Those that remain, however, even after Inspector Lamp issued his order, demonstrate a violation of A.R.S. § 32- 1154(A)(23). Furthermore, because of the length of time that has elapsed without correction of the items remaining, imposition of a civil penalty pursuant to A.R.S. §32-1154(D) is appropriate. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class B license shall be suspended on the effective date of the Order entered in this matter. It is further recommended that if Respondent submits written proof to the Director that appropriate and effective remedial work on the nine items noted in Finding of Fact 6, above, has been accomplished, on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place. It is further recommended that Respondent be ordered to pay a $250.00 civil penalty as provided by A.R.S. § 32-1154(D). Done this day, April 25, 2001

______________________________________ Gregory L. Hanchett 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 ___________________________

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