ALJDEC

01F-M1245-ROC · Registrar of Contractors · 2001-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2001 APPEARANCES: Dorothy Broking on her own behalf; George Ferrin, Esq. on behalf of Arizona Fire and Water Restoration, Inc. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. In early March, 2000, Dorothy Broking (Complainant) experienced flooding at her residence located at 16164 West Impala Drive, Casa Grande, Arizona (Home), that occurred as a result of rain storms. 2. As a result of water damage to the Home, Complainant contacted her homeowner’s insurance carrier to submit a claim for coverage for such damage. 3. Complainant contacted Arizona Fire and Water Restoration, Inc. (Respondent) to obtain a bid to perform the work necessary to restore the Home. 4. Lyle Book (Mr. Book), the owner and president of Respondent, testified that because Respondent’s initial bid did not correspond to the itemization made by Complainant’s insurance carrier, Respondent submitted a second bid to Complainant for restoration work to be performed. . . . 5. It is undisputed that the above-mentioned second bid was accepted by Complainant and constitutes the original contract (Contract) that Respondent and Complainant entered into for restoration work to be performed at the Home. 6. As a result of certain problems Complainant encountered with Respondent’s work at the Home, on April 10, 2001, Complainant filed a complaint with the Registrar of Contractors. 7. Registrar of Contractors Inspector Ron Lamp arranged for a jobsite inspection of the Home to take place on April 26, 2001. Complainant and Mr. Book were present during the jobsite inspection. 8. As a result of the jobsite inspection, Inspector Lamp issued a Corrective Work Order requiring Respondent to perform certain remedial work within fifteen calendar days of issuance of the Corrective Work Order. 9. At the commencement of the hearing, Complainant represented that the following items were in dispute that were set forth in the complaint that was filed with the Registrar of Contractors: a) Gaps exist around kitchen wall where tile was removed; b) Cracks exist in bathtub; c) Stucco cracks exist; d) Air conditioning/heat pump unit (Unit) is not cooling or heating Home uniformly; e) Intercom system parts are missing and intercom system not re-installed; f) Central vacuum system parts are missing and was not reconnected; and g) Warranty information concerning the Unit, roof, and hot water heater was not provided. Gaps in Kitchen Wall 10. Complainant testified that Respondent removed tile in the kitchen when replacing sheetrock and did not replace the tile. Consequently, gaps exist in the kitchen in the areas where the tile has been removed and not replaced. Those gaps are different than the voids Inspector Lamp addressed in the Corrective Work Order. 11. Mr. Book testified that during the job Respondent noticed dry rot around the kitchen window and had to reframe the window. During that process, Respondent had to remove tile. Mr. Book testified that Complainant told him that she had replacement tile in storage and that her son, a tile installer, would install the tile. 12. Complainant’s testimony with respect to the tile job in the kitchen differs than that of Mr. Book to such a degree that the Administrative Law Judge has no reason to disbelieve either party. Therefore, even if Respondent believed that Complainant’s son would reinstall the tile in the kitchen, the evidence of record establishes that Respondent subsequently became aware that Complainant wanted and expected Respondent to perform that work. 13. It is determined that because Respondent removed the existing tile in the location within the kitchen where the gaps exist (as evidenced by Exhibits A, B1, B2 and B3) and that the work Respondent performed in that area of the Home was within the scope of work agreed to by the parties, Respondent is responsible for reinstalling tile that is to be supplied by Complainant to fill the gaps. Complainant testified that she has matching tile in storage at the Home that can and will be provided to Respondent for that purpose. Bathtub Cracks 14. Inspector Lamp testified that during the jobsite inspection, he noticed that the bathtub had cracks that were determined to be Respondent’s responsibility to repair, as set forth in the Corrective Work Order issued by Inspector Lamp. 15. The evidence of record established that Respondent had made repairs to the bathtub and the bathtub now has other cracks which did not exist at the time of the jobsite inspection. 16. During his pre-hearing inspection of the Home on October 22, 2001, Inspector Lamp noted the existence of new cracks in the bathtub and that repair work had previously been accomplished by Respondent in other areas of the tub. Inspector Lamp testified that Respondent is responsible for making appropriate repairs to the cracks in the tub. 17. During the hearing, Respondent represented that it had just learned of the bathtub cracks that currently exist and would repair them. Complainant was satisfied with Respondent’s acceptance of responsibility for this item and Respondent’s representation that the bathtub cracks would be repaired. Stucco Cracks 18. Complainant testified as to the existence of stucco cracks around the Home‘s exterior in certain areas. 19. Inspector Lamp testified that during the jobsite inspection, he observed stucco cracks that were within industry standards and met minimum workmanship standard. Therefore, no remedial work was required of Respondent with respect to the stucco. 20. Inspector Lamp testified that during a pre-hearing inspection on October 22, 2001, he noticed three areas of stucco cracking that now require remedial work by Respondent. Those areas are: a) the Southwest corner and west wall of the garage, b) the Northwest corner of the home, and c) the exterior area outside of the kitchen. 21. Complainant testified and presented evidence purporting to show a hole on the exterior of the Home where ants gain entry into the Home. 22. Inspector Lamp testified that during the pre-hearing inspection, Complainant showed him the area complained of and he did not observe any hole or crack in the stucco that would allow ants to enter the Home. 23. The Administrative Law Judge determines that the photographs presented by Complainant do not depict a hole, crevice, or crack through which ants can enter the Home. Thus, the weight of the evidentiary record with respect to that area does not support Complainant’s contention as to a deficiency that requires remedial work by the Respondent. 24. Mr. Book testified that while the hearing was taking place, Respondent’s subcontractor was at the Home performing repairs to cracks in the stucco. 25. The evidence of record established that stucco cracks exist at the Home that were verified by Inspector Lamp during his pre-hearing inspection, and that Respondent is responsible for correcting them. Air Conditioning/Heat Pump Not Properly Cooling/Heating Home 26. Complainant testified that Respondent replaced the Unit in the Home. Since that time, Complainant has experienced and still experiences problems in having rooms maintain a uniform temperature. Those problems exist with the heating and cooling of the Home. 27. During the jobsite inspection, Inspector Lamp inspected the Unit and did not observe any leaks. 28. Although Inspector Lamp found that the “darkroom” door[1] in the Home had to be left open for the return of air, he was not able to verify any cooling or heating problem in the Home and determined that the Unit was functioning as intended. 29. Mr. Book testified that during the jobsite inspection he observed that the two air filters in the Home were clogged. Mr. Book also testified as to his belief that the clogged air filters was causing the heating/cooling problem in the Home. 30. According to Mr. Book, Respondent’s air conditioning subcontractor had been contacted about the problem and was willing to balance the air flow through the Home. Mr. Book testified that the balancing of air flow was normally a separate charge than the original installation of an air conditioning/heat pump unit because the balancing of air flow is a personal choice dependent on the homeowner. 31. It is determined that Respondent, through its subcontractor, was responsible for the original installation of the Unit. In conjunction with the installation of the Unit, Respondent is responsible for having the air flow initially balanced so as to achieve acceptable uniform temperatures throughout the Home per industry tolerances. 32. Based on the evidence presented, it does not appear that Respondent initially balanced the air flow. Consequently, it is determined that Respondent is responsible for balancing the air flow in the Home. Intercom System and Central Vacuum System 33. Complainant testified that during the restoration work performed at the Home, Respondent removed an intercom system consisting of room control boxes and stereo speakers in all of the rooms of the Home and a main control box. Complainant testified that the intercom system has parts missing and was not reinstalled 34. Complainant testified that Respondent removed the central vacuum system from the Home. Complainant also testified that the central vacuum system had parts missing and was not reconnected. 35. Complainant’s witness, Pat Seely (Mr. Seely), who is a former employee of Respondent, worked on the restoration of the Home for the Respondent. Mr. Seely testified that the Respondent removed the intercom system and central vacuum system at the Home. 36. Mr. Seely also testified that he saw day laborers, hired by Respondent for cleanup, place a box containing the intercom speakers into a dumpster located at the Home. Mr. Seely did not remove the speakers from the dumpster because he was unsure of the laborer’s scope of authority. Mr. Seely testified that he has no knowledge as to what happened to those speakers. 37. Mr. Seely testified that all of the central vacuum system parts were placed in a box in storage. Although Respondent did lose one part, Mr. Seely testified that his supervisor located that part and replaced it so that Complainant was provided with all of the central vacuum system parts. 38. Mr. Book testified that all of the intercom system and central vacuum system parts were placed in storage in boxes and provided to Complainant. 39. Mr. Book also testified that the Contract and all written change orders executed by Complainant do not provide for the reconnection of the central vacuum system or for the reinstallation of the intercom system. 40. Mr. Book testified that Respondent has informed Complainant that it will reinstall the intercom system and reconnect the central vacuum system for Complainant on a time and material basis. 41. Complainant contends that Respondent is responsible for the reinstallation of the intercom system and reconnection of the central vacuum system. During the hearing, Complainant conceded that that there is no provision within the Contract or written change orders for such work to be performed by Respondent. 42. Complainant testified that she assumed that the intercom system would be reinstalled and the central vacuum system would be reconnected. 43. With respect to the intercom system and central vacuum system, Inspector Lamp testified that he had no knowledge as to how those items were addressed in the Contract. Inspector Lamp determined in the Corrective Work Order that Respondent should reinstall the intercom system because Respondent removed it. Inspector Lamp did not see the central vacuum system during his jobsite inspection and does not know who removed it. Therefore, Inspector Lamp did not find Respondent to be responsible for the reconnection of the central vacuum system. 44. During the pre-hearing inspection of October 22, 2000, Inspector Lamp observed that the intercom system had not been installed. 45. Inspector Lamp testified that if the Contract provided for the reconnection of the central vacuum system and reinstallation of the intercom system on a time and material basis, then Respondent would not be obligated to reinstall such items without compensation. Inspector Lamp also testified that, alternatively, if the Contract was a lump sum contract that included work regarding the intercom system and central vacuum system, then Respondent would be responsible for reinstalling such items if it had removed them. 46. The weight of the evidence of record established that Complainant was inundated with paperwork and did not pay attention to the details of the Contract or change orders. The Contract and change orders are itemized and specific in nature. 47. The work authorization document executed by the parties on March 10, 2001, provides that : Any work beyond the contract Scope of Work shall be deemed ‘Additional Work’ and shall include any changes in specifications, plans, or other requirements of the Owner and/or local building officials. Such Additional Work may be requested verbally, however, Owner agrees to sign a formal written change order when it is prepared and presented. Unless otherwise agreed in writing, Owner will pay for all Additional Work on a time and material basis. 48. Contrary to Complainant’s assertion that Respondent was to restore her home completely, the weight of the evidence established that due to monetary concerns as well as enlargement as to the scope of work Respondent was to perform which included improvements in addition to restoration, Complainant picked and chose what work Respondent would perform. Though Complainant may have not paid attention to details and may have believed that her insurance carrier would pay for all restoration work, the Contract and change orders entered into by Complainant and Respondent specified the work Respondent would perform for Complainant. 49. During the hearing, Respondent presented Complainant with the main control box for her intercom system and Complainant confirmed receipt of such item on the record. Respondent was responsible for delivering to Complainant the intercom system and central vacuum system, which has now been accomplished. 50. Under all of the facts and circumstances presented, it is determined that Respondent is not responsible for reinstalling the intercom system and is not responsible for reconnecting the central vacuum system. Warranty Information 53. Complainant testified that she requested from Respondent and did not receive warranty paperwork regarding the Unit, the water heater and the roof. 54. Inspector Lamp did not address the warranty issue. 55. Mr. Book testified that he was unaware that the warranty information had not been provided to Complainant, that he previously took action for that to occur, and that Respondent would provide such information to Complainant. CONCLUSIONS OF LAW 1. The weight of the evidence of record established that Respondent has violated the provisions of A.R.S. §32-1154(A)(7) and (3), namely A.A.C. R4- 9-108.

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2. The determination by Inspector Lamp as set forth in the Corrective Work Order requiring Respondent to repair kitchen wall voids is determined not to have included that portion of the kitchen which was found to currently have gaps. The above Findings of Fact establish that Respondent is responsible for repairing that portion of the kitchen where tile has been removed and not replaced. 3. The weight of the evidence of record fails to support a finding of a violation of A.R.S. §32-1154(A)(23) because the Administrative Law Judge determines that Respondent complied with that portion of the Corrective Work Order that the Administrative Law Judge finds Respondent was responsible to perform. RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter, Respondent’s Class B license shall be suspended until the Registrar of Contractors receives written proof that Respondent has provided Complainant with the above-mentioned warranty paperwork and has accomplished appropriate and effective remedial work with respect to the stucco, the gaps in the kitchen wall, and the Unit, as set forth above, subject to a condition precedent that with respect to the gaps in the kitchen wall, Complainant must furnish matching tiles for this aspect of the work. It is further recommended that if Respondent accomplishes the above on or

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. . . before the effective date of the Order entered in this matter, then the above-mentioned suspension shall not take place and Case Number M01-1245 shall be closed. Done this day, November 9, 2001.

______________________________________ Lewis D. Kowal 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 ___________________________

----------------------- [1] The “darkroom” is an interior room with no windows and is used by Complainant as a bedroom for her daughter.

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