ALJDEC

01F-T1221-ROC · Registrar of Contractors · 2002-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, December 21st, 2001; 1:30 p.m. APPEARANCES: The complainants, Duane and Cheri May, appeared and represented themselves. The respondent, James Carmine Adams, doing business as Strawberry House, represented himself. 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 appellant herein, James Carmine Adams, doing business as Strawberry House, is, and during all times material hereto was, a contractor licensed by the State of Arizona, holding Class C-21 License number 142387. Respondent is no longer in business as a contractor, and has allowed his license to go on inactive status. 2. Complainants are a married couple residing in Tucson. They contracted with respondent on or about June 17th, 1999, for the respondent to construct landscaping, pool and patios at complainants’ Tucson residence. 3. Respondent completed work on the project in December of 1999, and complainants were dissatisfied with many aspects of the respondent’s work. The complainants filed the instant complaint with the Registrar of Contractors on June 27th, 2001. They stated in their complaint their complaints about the patio sloping into their house, meaning it has negative grade to where water runs towards and into the house instead of away from it; the electrical work performed by respondent was defective, and the water wall features are defective. 4. The complaint was assigned to Registrar of Contractors Inspector James R. Morris, who conducted a scheduled job-site inspection at the complainants’ residence on August 10th, 2001, at 8:00 a.m. Complainants were present, but the respondent failed to appear for the job-site inspection. 5. As a result of his job-site inspection, the inspector issued a Corrective Work Order to the respondent dated August 14th, 2001. The CWO directed the respondent to: 1. Correct flagstone exterior patio pavers to meet Uniform Building Code’s 2” clearance requirement under the stucco weep screed at rear of house and outside the piano room; 2. Correct the electric service to the barbecue island counter; 3. Correct the water feature’s water flow from pipe, water level in pond, and electric conduit defect; 4. Correct the peeling paint at the water feature, steps, island counter and beehive fireplace; 5. Replace landscaping plants that did not survive, and 6. Correct cracks in the step risers. The inspector added requirements that all work must be accomplished according to all written and verbal contract agreements, prints, plans, specifications, manufacturer’s specifications and recommendations, and in accordance with good workmanship practices, industry standards and in accordance with all applicable codes. The inspector allowed the respondent 15 calendar days from the date of the CWO to make the corrections, which was a reasonable amount of time. 6. Respondent had not made the ordered corrections within the allotted time, and therefore the complainants requested an administrative hearing on their complaint by letter to the Registrar of Contractors and Inspector Morris dated August 30th, 2001. Complainants stated that the respondent had made none of the corrections. 7. A Citation and Complaint was issued from the Registrar of Contractors on October 19th, 2001, charging the respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. (A.A.C. R4-9-108). 8. Respondent filed a written answer to the citation and complaint on October 30th, 2001. Respondent stated that he is no longer in business and that the business entity known as Strawberry House no longer exists.

9. An administrative hearing was held on December 21st, 2001. Both complainants appeared as did Mr. James C. Adams, the respondent. Inspector Morris also appeared and testified at the hearing. 10. Inspector Morris testified that he had conducted a pre-hearing inspection the day before the hearing, and he then saw that none of the items he had directed the respondent to correct in his CWO had been addressed. He said the previously unacceptable conditions were continuing to deteriorate from lack of any corrective effort. 11. Part of the complainants’ evidence included the facts that they had a licensed electrician visit their home and inspect the electrical portions of respondent’s work. It was his opinion that the electrical work performed by the respondent was poor; that the underground electrical work was improperly installed, and incorrect materials for the job were used. Respondent has never been a properly licensed electrical contractor. 12. Respondent did not dispute any of the complainants’ evidence. In accordance with his testimony and the registrar’s records, it is found that since working on complainants’ house, respondent has put his license on inactive status, and gone out of business. He now earns a living in a field entirely different from contracting. 13. Based on the totality of evidence, it is found that the respondent completely botched the job at the complainants’ house relative to the items mentioned by the complainants in their complaint, and those same items addressed by Inspector Morris in his CWO. It is further found that the respondent failed to make any corrective effort to correct the items of his work. 14. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction to hear this matter. A.R.S. §32-1156, and A.R.S. §41-1092. 2. The respondent herein is cited in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.7., 23., 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 the citation and complaint is A.A.C. R4-9-108, Workmanship Standards. That rule requires the whole of a contractor’s work to be performed in a professional and workmanlike manner. The consistent and uncontradicted evidence in this case, from the inspector, the complainants and the respondent, is that the respondent’s work was unprofessional and unworkmanlike in several material respects. Respondent violated A.A.C. R4-9-108, and thereby violated A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contracting laws of the State of Arizona, without valid justification, within a reasonable period of time, after receiving a written directive from the registrar to do so. The written directive in this case is the Corrective Work Order. That order allowed the respondent a reasonable amount of time to correct the defective work. The respondent failed to make any corrections at all, even up to the time of the hearing. Respondent offered no valid justification for the failure. Respondent violated A.R.S. §32-1154.A.23. 5. A.R.S. §2-1154.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 no evidence of any violation of this section independent of the violations already concluded. . . . . . . . . . RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that on the effective date of this order (40 days after the date of service shown by the registrar’s certification on the order) the respondent’s Class C-21 License number 142387, shall be revoked.

Done this day, January 8th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002, 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