ALJDEC

01F-T0820-ROC · Registrar of Contractors · 2001-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, October 9th, 2001; 9:00 a.m. APPEARANCES: The complainant, Mr. Clarence L. Stevens, appeared and represented himself. The respondent, Jackson Construction Company, was represented by its owner and qualifying party, Mr. Eugene Jackson. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, Arizona. 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, Jackson Construction Company, was during the times giving rise to this complaint, a contractor licensed by and doing business in the State of Arizona, holding Class B- License Number 053966. The Registrar of Contractors suspended the respondent’s license on August 13th, 2001, for respondent’s failure to pay his required bond.

2. The complainant, Mr. Clarence L. Stevens, is a homeowner in Tucson. Complainant contracted with the respondent, through its owner and qualifying party, Mr. Eugene Jackson, for the respondent to perform extensive remodeling of the complainant’s home. 3. The parties contracted with each other on or about June 18th, 2000, and respondent last performed work on the project around January 12th, 2001. The contract price term was $56,000.00. As of the filing of this complaint, all but $18,000 of the contract price had been paid from complainant to respondent. 4. Following completion of the work the complainant was dissatisfied with much of what the respondent had done, and on February 26th, 2001, he filed the instant complaint with the Registrar of Contractors. 5. As a part of the complainant’s complaint he attached a numbered list of items that were the subject of his complaint. The complaint was assigned by the registrar to Inspector Richard C. Allen for his inspection. Inspector Allen conducted a job-site inspection on March 19th, 2001, and verified much of what was in the complainant’s complaint. 6. Inspector Allen issued a Corrective Work Order to the respondent dated April 2nd, 2001. Respondent was ordered to make several corrections to his work, and they are found below in numerical order as they appear in the CWO. 7. “1. Clean up excessive mortar and mortar spills on block walls by appropriate means. Clean/eliminate the water stains on the block walls by appropriate means.” Inspector Allen testified at the hearing. He had conducted a pre-hearing inspection of the work site on October 3rd, 2001. He testified the condition of the block walls had not changed from the time of his original inspection. Complainant produced evidence to show that this unacceptable condition remains. Respondent has not cleaned the block walls. 8. “2. Correct out of level/uneven garage concrete floor to within acceptable tolerances per minimum workmanship standards.” Inspector Allen testified that this condition had not changed by the time of his pre-hearing inspection and still needs to be corrected. 9. “3. Correct leaking sky lights by appropriate means.” Inspector Allen testified that this defect has not been corrected. 10. “4. The leaking furnace chimney is not the responsibility of this contractor because the homeowner hired the mechanical contractor directly.” This finding and testimony of the inspector was not disputed by either party. 11. “5. Correct all drywall finish and texture by appropriate means, including drip/runs and flat areas, etc.” Inspector Allen testified that the texture is still in need of some corrective work. 12. “6. Hire a properly licensed electrical contractor to correct all electrical defects and to obtain all approval inspections from local building authorities.” Mr. Lincoln Thomas, Pima County Chief Building Inspector, testified as well as Inspector Allen. Their evidence shows that the respondent attempted to perform the electrical work. Respondent testified that he has never had but a Class B- License. Respondent’s electrical work was defective. Inspector Allen testified that it had not been corrected. When he discovered that respondent had attempted to perform the electrical work, Inspector Allen sent him a letter advising him that the work was out of his Class B- License scope.

13. “7. Correct all defects regarding the rear porch by appropriate means, including the poor fitting connections with large gaps at the posts, shoes, beams, rafters, etc., and obtain all approved inspections regarding the roof from local building authorities.” Inspector Allen testified that the roof still needs to pass the inspections. The complainant produced ample evidence to find that the construction of the roof vigas was poor, and below minimum workmanship standards. They were uneven in length and incorrectly cut in most places. This item of the CWO needs to be corrected and the vigas need to be replaced or corrected by appropriate means. 14. “8. Correct the ponding of the garage roof to within acceptable tolerances per minimum workmanship standards.” Inspector Allen verified that the ponding was still occurring on the roof. Complainant produced ample evidence to find that there remains a problem with ponding on the roof. 15. “9. Clean up the black stain spill on rear concrete slab by appropriate means.” Inspector Allen said he did not notice whether the stain was still there when he conducted the pre-hearing inspection. There is no evidence to suggest that it was corrected, and some evidence tending to show that respondent did not correct this or any other item in the CWO. It is found that the stain remains and respondent should clean or remove it appropriately. 16. “10. Correct all interior water damage to room adjacent to rear porch by appropriate means.” During construction the respondent did not take preventive measures to insure against water penetrating into the house. As a result, water did penetrate the complainant’s house and caused extensive water damage to walls, ceilings, doors, and furniture. One $4,000 sofa was ruined by respondent’s careless workmanship, and rugs were damaged. Respondent has not taken any steps to correct the water damage. 17. “11. If the undersized height of the garage walk through door is the result of an error with the homeowner provided plans and drawings and the respondent constructed the slabs according to the plans, then this contractor is not responsible for correcting this door opening.” Complainant did provide the plans, and it does appear from the evidence that the error was a result of those plans. Respondent is not responsible for making this correction. 18. “12. Complete this project according to all written and verbal agreements; according to all prints, plans, contracts, specifications, etc., according to good workmanship practices; according to industry standards; according to manufacturer’s instructions; and per all codes.” This project has not been completed. It is not up to code in all aspects. Complainant produced evidence that the respondent has not completed other aspects of the contracted work; for examples, he did not complete the concrete driveway, supply shelves for a closet, construct a wood porch overhang, or complete framing changes in the living room. Inspector Allen’s CWO allowed the respondent 15 calendar days from the date of the order to perform the corrections, which was a reasonable amount of time. 19. Respondent offered hardly any evidence in his own behalf. He gave testimony for himself; he called no witnesses. He did not deny the material allegations being made against him in this case. He did testify, and filed a written answer to the effect, that he did not return to perform the ordered corrective work because complainant had somehow threatened his safety. Respondent’s allegation of this is vague at best, and completely uncorroborated by any record evidence. Complainant denied threatening respondent, and denied making any untoward remarks to respondent other than comparing respondent’s intelligence level to that of a rock. 20. Respondent testified that he is no longer contracting and is unaware of his own license’s status. He testified that he has not recently paid his contractor’s bond. A check of the registrar’s prior license record revealed that respondent’s license indeed was suspended. 21. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of A.R.S. §32-1156, and A.R.S §41-1092 ( 1092.12. 2. The respondent herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.3., 7., 17., and 23. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the citation and complaint is A.A.C. R4-9-108 Workmanship Standards. Respondent clearly violated this rule in almost every facet of his construction at complainant’s house, as found above, and as found by the inspector. Respondent, in violating this rule, violated A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractors’ laws of this state, without valid justification, within a reasonable period of time, after receiving written directive from the registrar to do so. The written directive in this case is the CWO. Respondent was given a reasonable amount of time to make corrections to his defective work, failed to do so, and offered no valid justification. His claim that he was intimidated away from the job by the complainant was not convincing. Respondent violated A.R.S. §32-1154.A.23. 5. A.R.S. §32-1154.A.17. prohibits a licensed contractor from knowingly contracting beyond the scope of his license. Respondent violated this section when he contracted to perform electrical work at complainant’s house, knowing he had only a Class B- License. 6. 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. Respondent violated this section when as a contractor he failed to take adequate precautions against water entering the home he was working on, which directly resulted in water damage to the complainant’s house and furniture. RECOMMENDED ORDER In view of the foregoing, it is hereby recommended that respondent’s Class B- License Number 053966 be revoked on the effective date of this order (40 days after the date of mailing shown by the registrar’s certification on the order). Done this day, October 25th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

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