ALJDEC

01F-T0422-ROC · Registrar of Contractors · 2001-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, October 31st, 2001; 9:00 a.m. APPEARANCES: The complainants, Dr. Bernard and Ms. Charlyn Cohen, appeared and represented themselves. The respondent, Interiors With Imagination, was represented by Mr. Michael S. Green, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Interiors With Imagination, is, and during all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, holding Class K-61 License number 147938. 2. The complainants contracted with the respondent on or about March 28th, 2000, for the latter to perform certain work in their Tucson home. Pursuant to the contract the respondent was to install some tile, repair some base moldings, repair some sheet rock, and repair some grout in the bathrooms. Respondent was to paint at certain areas also. The contract price term was $5,000.00. 3. The repair work was to surfaces that had been damaged by water leaking into the home previously from structural defects, or faulty plumbing, or some other source to the home created years before the respondent arrived on the scene, and absolutely unrelated to any of the respondent’s activities in the home. 4. As a matter of fact, when the respondent’s salesman, Mr. Enrique Feldman, was viewing the home with an eye toward making a proposal of work to satisfy the complainants, he noticed the evidence of previous water damage, and asked about that problem. He was told by complainants not to concern himself with those conditions as they had already been remedied. 5. There is in the record incontrovertible evidence that the complainants had serious defects in their home antedating the arrival of the respondent by a number of years. Complainants filed with the Registrar of Contractors on March 20th, 1992, a complaint against New West Homes, the builder of this house (T92-0598). Among their complaints against New West Homes was cracking in the tile grout on the master bathroom wall, and along the tub and window. This problem was at one of the same problem areas this respondent was hired to repair. 6. The respondent was not hired to do anything more than is stated in the contract, and certainly was not hired to repair or correct the previous contractor’s structural defects, which existed long before the respondent first went into complainants’ house. 7. Respondent’s work would repair the damage to the interior surfaces that was caused by the leaking, but would not correct the underlying leaks. Nor was such a remedy ever intended by the respondent, or the terms of the contract. 8. Following completion of performance on the contract, the complainants experienced further damage from water. They filed this complaint with the Registrar on October 24th, 2000. They are complaining that the respondent’s work did not correct the problems they have had for years. Their evidence included photographs of the interior areas of their home, at closet and master bathroom sites. The photographs clearly depict water damage on the walls, base boards and adjacent carpet. 9. The complaint was assigned to Registrar of Contractors Inspector Richard C. Allen. He conducted a job-site inspection on December 7th, 2000. Even before Inspector Allen conducted a job-site inspection at the house, the respondent returned to redo some of its work. Such activity by the respondent was noted by the inspector in his Corrective Work Order issued on December 20th, 2000. The inspector’s CWO did not find any of the respondent’s work defective, nor did it order the respondent to correct any of its work. Inasmuch as it did not contain either of those findings, it truly is not a Corrective Work Order. It did make mention of respondent’s agreements “to seal the bottom/threshold of the master bedroom sliding glass door and re-stretch the carpet,” and to perform some touch-up painting, and “to repair the ‘flat’ texture at the repair near the hall corner bed.” 10. Inspector Allen conducted a pre-hearing inspection on October 29th, 2001. He testified at this hearing. It was his finding at the pre- hearing inspection that the respondent’s work was completely satisfactory. 11. There is no doubt that the complainants have been and are now experiencing problems with water being admitted into the interiors of their walls from some source, e.g. plumbing or structural defects, or something else besides. However, their problems were not caused by any of the respondent’s work, and respondent’s work cannot reasonably be viewed as any that was ever intended to correct those problems. Respondent’s work repaired the unsightly results of the water damage, but unless and until the admittance of the water is stopped, money spent to repair the damage it causes will be wasted, just as the money spent for respondent’s work was apparently wasted. CONCLUSIONS OF LAW 1. This administrative hearing was held pursuant to and in accordance with A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.7., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the Registrar. The rule cited in this citation and complaint is A.A.C. R4-9-108, Workmanship Standards. There is absolutely no evidence that the respondent’s work was not up to professional, workmanlike standards. Respondent did not violate A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is absolutely no evidence of fraud or wrongful action on the part of the respondent. Respondent did not violate A.R.S. §32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint number T01-0422, together with the complaint on which it is based, be dismissed. Done this day, November 13th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of November, 2001, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488