ALJDEC

01F-T0823-ROC · Registrar of Contractors · 2001-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 2001; at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through his attorney, Steve Waitt. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. These matters (Case Nos. T01-1031 and T01-0823) were consolidated for hearing on the basis that both matters involve the same parties, the same written agreement, and would necessarily involve the same witnesses and evidence. 3. There was no dispute that on or about December 29, 1999 the parties entered into a written agreement for the construction of two residences. 4. The parties’ written agreement provides, in pertinent part, as follows: “The Contractor agrees to build two homes identical to the address of 4750 W. Calle Don Tomas, Tucson, AZ 85746. As per plan #1104 three bedroom, two bath Santa Fe style home.” 5. During the course of construction of the two homes the parties became embroiled in a dispute regarding whether the two houses were to be constructed identically to the residence located at 4750 W. Calle Don Tomas or whether the two residences were to be constructed as per plan #1104. 6. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete the residences identically to the residence located at 4750 W. Calle Don Tomas despite repeated requests that the Respondent do so. The Complainant then filed two formal complaints (one complaint for each residence), against the Respondent, with the Registrar of Contractors. 7. Pursuant to the filing of the formal complaints, an assigned Agency Inspector conducted an on-site inspection of both residences and issued two written corrective work orders directing the Respondent to perform designated corrective work on the two residences. 8. The written corrective work order for Case No. T01-0823 provides, in pertinent part, as follows: “1A- Contractor will clean caulk off door to garage. 1B- Contractor to reset/plumb garage door to backyard. 2- Contractor to correct height of mirrors in master bathroom and hall bathroom to 6’-0 away from floor. 3- Contractor to correct ceramic floor tile detail at wall per sample house. 4- Contractor to deliver per contact agreement on garage door opener. 5- Contractor to deliver per contract/sample shown on 3” wide porch rafter size. 6- Contractor to correct size, shape and paint on front porch post bases per contract/sample shown. 7- Contractor to correct ceramic floor tile per contract/sample/ROC minimum workmanship standards on cuts, trim and sealant. 8- Chimney is on separate house an additional complaint is necessary. 9- Complete this project according to all written and verbal contracts…” 9. The written corrective work order for Case No.T01-1031 provides, in pertinent part, as follows: “1- Contractor to provide 3 inch wide rafters on porch per sample house. 2- contractor to tie porch beam to log posts with bolts per sample house. Note: Cuts in posts are on the 1401 house. 3- Floor tile to be terminated at wall under trim per sample house. 4- Kitchen cabinets to be supplied per sample house. 5- Skylight to be installed in kitchen per sample house. 6- Garage door opener to be installed per contract/sample house. 7- Contractor to install kitchen counter tile back splash per sample house. 8- Contractor to install wood beam and stain in living room per sample house. 9- Contractor to correct layout/wall opening to kitchen from hall per sample house. 10- Contractor to obtain FHA inspection/approval per contract. 11- Contractor to install bathroom mirror at approximate 6’-0 off per sample house. 12- Contractor to use semi-gloss paint in kitchen & bathrooms per contract. 13- Contractor to use bolts per sample house see #2 above. 14- Complete this project according to all written and all verbal contract agreements… .” 10. There was no dispute that on one occasion the Respondent’s appeared at one of the residences and were denied access. However, credible evidence established that both residences are utilized as rental houses and are occupied. Credible evidence established that the Complainant received no prior notice of the Respondent’s selected time and date to perform corrective action on the residence. The Complainant’s action in denying access on this occasion was not shown to be unreasonable. 11. The Respondent asserted that it should not be held to the items of the written corrective work orders that address items to be corrected “as per the sample house” and that the Respondent should only be held responsible for items that fail to comply with applicable minimum industry standards. 12. Credible evidence, presented at hearing, established that the Complainant and the Respondent personally walked the residence located at 4750 W. Calle Don Tomas and agreed that the two new residences were to be constructed “identically” with the sample residence. 13. The term “identical” is defined as follows: “Exactly the same for all practical purposes.“ BLACK’S LAW DICTIONARY, REVISED FOURTH EDITION, 1968, page no. 880. 14. Credible evidence, presented at hearing, established that the two residences at issue were not constructed identically to the residence located 4750 W. Calle Don Tomas, in that the Respondent failed to install the same amount of kitchen cabinetry, the same layout/door opening in the master bedroom, the same type of wood beam/stain in the living room, the same type of kitchen counter tile back splash, the same type of porch rafters, the same type of bathroom mirror installation, the same type of log post porch beam installation, and the same type of kitchen skylight in the two residences as per the house at 4750 W. Calle Don Tomas. The Respondent shall complete/correct these items in accordance with the parties’ written agreement and the written corrective work orders issued herein. 15. The floor tile installations in the two residences were shown to comply with applicable industry standards and to comply, for practical purposes, with the floor tile installation in the house located at 4750 W. Calle Don Tomas. 16. There was no credible evidence presented to establish that the interior painting of the two residence failed to comply with the parties written agreement, the house at 4750 W. Calle Don Tomas or applicable industry standards. 17. There was no dispute that the Respondent had agreed to FHA inspections/approvals for the two residences and that no inspections/approvals have been obtained. The Respondent shall obtain and deliver to the Complainant the agreed upon FHA inspection/approvals. 18. The Respondent’s actions, in failing to construct the two residences in accordance with parties’ written agreement and in failing to obtain the agreed upon FHA inspections/approvals, are found to constitute a wrongful act. 19. The parties written agreement does not state the Respondent is to construct garages for the two new residences; instead the written agreement indicates that carports are to be constructed. 20. Credible evidence, presented at hearing established that the parties entered into a separate agreement for the construction of the two garages but that the parties are now in sharp dispute as to the terms of their agreement. 21. There is no dispute that the garages were constructed for the two residences but the parties are involved in a sharp dispute as to whether the Complainant is responsible for the costs of constructing the two garages and whether garage door openers should have been provided. 22. The parties’ dispute relating to the construction of the garages, including the cost of construction and whether or not garage door openers are included, are found to constitute a good faith dispute that will necessarily involve a money adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction. 23. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B-License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly accomplished the corrective actions set forth above in Finding of Fact Nos. 14 and 17. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation Nos. T01-1031 and T01-0823 shall be closed. Done this day, November 14, 2001

______________________________________ M. Douglas 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488