ALJDEC

02F-A0221-ROC · Registrar of Contractors · 2002-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2002 APPEARANCES: Complainant, Frank Kennemur; Paul Nicholson for Respondent (telephonically). ADMINISTRATIVE LAW JUDGE: Wendy S. Morton _____________________________________________________________________ The issue presented by this matter is whether Respondent Paul Jon Nicholson, doing business as Nicholson Custom Homes (“Nicholson”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Nicholson is the holder of a Class B license (No. 117937) issued by the Registrar of Contractors (“ROC”). Paul Nicholson is the owner of Nicholson. 2. Complainant Frank Kennemur (“Mr. Kennemur”) contracted with Nicholson to build a custom home on a lot Nicholson owned at 2530 West Road One,

South Chino Valley, Arizona (the “Home”). Nicholson started construction in July, 1999. The Home was completed on December 15, 1999. 3. Mr. Kennemur was dissatisfied with various aspects of the construction on the Home. On November 5, 2001, he filed a complaint against Nicholson with the ROC. 4. ROC Inspector Cliff Frandsen was assigned to investigate the Complaint. He was assisted by ROC Inspector Daniel Lafond. 5. On November 15, 2001, Inspectors Frandsen and Lafond conducted a jobsite inspection at the Home. Mr. Kennemur was present during the inspection. No one from Nicholson attended the jobsite inspection. 6. On November 16, 2001, Inspector Frandsen issued a Corrective Work Order (“CWO 1”) requiring Nicholson to correct the following items still at issue: 1) Gas line in attic and garage not properly secured. 2) Furnace vent flue in attic is touching a wooden truss. 3) Flex gas line in contact with furnace cabinet. 4) Seal penetrations through drywall ceiling in garage. 5) Deteriorating stucco at these locations: top left corner of front of house/cracking and flaking of stucco on west, north and east sides of house/void around water spigot on west side bottom right corner of garage door/top corner of front porch where porch beam meets the house. 6) Replace the twisted beam on the west end of the back porch. 1) Water supply line to water heater not secured to wall.

7. There were other items which required corrective work (CWO 1, items 7, 8, 10 and 11), but Mr. Kennemur repaired these items himself and they were not at issue in the hearing. 8. CWO 1 incorrectly informed Nicholson that its license was suspended until it complied with an order in an unrelated ROC case and therefore could not do or subcontract the corrective work until the suspension was lifted. 9. On December 5, 2001, the ROC issued a corrected CWO (“CWO 2”) reflecting that Nicholson was allowed to do the corrective work required by the ROC. Nicholson had fifteen days from the mailing date of CWO 2 (December 6, 2001) to do the corrective work. 10. On December 24, 2001, Mr. Kennemur requested a hearing. 11. Nicholson hired subcontractor Vaughn Skellenger, an acquaintance of Mr. Kennemur, to do all of the corrective work listed in CWO (with the exception of the stucco work [item 5]). Mr. Skellenger was also to have completed item 6 (replacement of the beam), but the parties have not agreed on the material to be used to replace the beam. 12. On May 8, 2002, Inspector Lafond conducted a prehearing jobsite inspection at the Home. Mr. Kennemur was present. There was no representative from Nicholson present. 13. At the prehearing jobsite inspection, Inspector Lafond found that on the majority of the items listed in CWO 1 (and re-listed in CWO 2), corrections had been attempted. Generally speaking, the attempted corrections were either incomplete, did not correct the problems or created other problems. 14. The gas line in the attic and garage (CWO 1, item 1) that previously had not been properly secured was now properly secured, but the two by two fastening components were not painted. 15. The flue (CWO 1, item 2) that had been touching the truss had been moved and was no longer touching combustible materials, however, the air space between the insulated pipe and the combustible materials (truss and wood sheeting) was less than the one inch space that is required. In addition, the gas line was still resting against the corner of the hole of the furnace.

16. Inspector Lafond also found that in the course of correcting the work, the furnace and related duct work was shifted over and now the duct work was kinked. Inspector Lafond testified that the kinking would restrict the flow of air to the rooms where the ducts were directed. 17. Inspector Lafond was also concerned about the stability of the vertical support of the flue pipe, which had been secured with plumber’s tape. Inspector Lafond testified that the lack of vertical support did not meet minimum workmanship standards. 18. While an attempt was made to insulate the flex gas line (CWO 1, item 3) with electrician’s tape, the line still rested up against the cabinet. According to Inspector Lafond, this was not an appropriate correction. 19. The seals around the pipes that penetrated from the garage up into the attic (CWO 1, item 4) had been corrected, but the texture had not been painted or completed. 20. Inspector Lafond found that the stucco repairs required in CWO 1, item 5, had not been totally corrected. There was cracking on the west, north and east sides of the Home. There were voids around spigots. None of the stucco corrections that had been made had been painted. 21. There is conflicting evidence as to who did the stucco repair work. Mr. Nicholson testified that he hired LJS Construction to do the work and that it was done on January 10, 2002. Mr. Kennemur testified that he had someone other than Nicholson or his subcontractor do the corrective work on the stucco. Mr. Kennemur could not remember, however, when he had the work done or the name of the company which did the work, only that he got the name and number from the phone book. The Administrative Law Judge finds Mr. Nicholson’s testimony to be more credible as to this issue and therefore finds that the corrective work continues to be Nicholson’s responsibility. 22. CWO 1, item 6 is a twisted 4 x 12 beam on the west end of Mr. Kennemur’s back porch. This item had not yet been corrected, but there were on-going negotiations between Mr. Kennemur and Mr. Nicholson as to how best to correct this issue. 23. Lastly, the water supply line to the water heater that had not been secured to the wall (CWO 1, item 9) was now secured, but the two by two fastening components had not been painted. 24. Mr. Nicholson now lives in Oregon. He testified that he paid a subcontractor (Vaughn Skellenger) to do the corrective work at the Home and was under the impression that it had all been done satisfactorily. 25. The Administrative Law Judge finds, based upon the weight of the evidence presented at hearing, that the following CWO items were not corrected satisfactorily and still require corrective work: Items 1, 2, 3, 4, 5, 6 and 9. CONCLUSIONS OF LAW 1. In this administrative proceeding Mr. Kennemur bears the burden to prove, by a preponderance of the evidence, that Nicholson violated A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), (A)(18) and/or (A)(23) as charged by the ROC in its January 14, 2002 Citation and Complaint. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 2. The Administrative Law Judge concludes that Mr. Kennemur has not sustained his burden to prove that Nicholson violated A.R.S. §32- 1154(A)(2) as no evidence was presented that Nicholson disregarded plans, specifications or building codes in the construction of the Home. 3. The Administrative Law Judge concludes that Mr. Kennemur sustained his burden to prove that Nicholson failed to comply with the ROC’s minimum workmanship standards in constructing the Home and therefore that Nicholson violated A.R.S. § 32- 1154(A)(3). 4. The Administrative Law Judge concludes that Nicholson violated A.R.S. § 32-1154(A)(7) as charged by the ROC by failing to perform appropriate corrective work and by engaging in a wrongful act that substantially injured Mr. Kennemur. 5. The Administrative Law Judge concludes that Mr. Kennemur has not met his burden to prove that Nicholson violated A.R.S. § 32- 1154(A)(18) by contracting or offering to contract while its license was suspended. There was no testimony or evidence offered to support that allegation. 6. The Administrative Law Judge finally concludes that Nicholson violated A.R.S. § 32-1154(A)(23) for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes that notwithstanding Nicholson’s attempts to do the corrective work through a subcontractor, the work was inadequate to correct the deficiencies in workmanship. 7. The Administrative Law Judge concludes that the relationship between Kennemur and Nicholson has irreparably broken down. At least one of the parties has an Order of Protection against the other and there is a documented history of mutual threats. Because of this, communication between the parties is difficult if not impossible. In addition, Mr. Nicholson has relocated to Oregon and does not have the financial or physical ability to complete the corrective work himself. Therefore, it is recommended that any corrective work that is Nicholson’s responsibility be done by a separate, duly licensed contractor paid by Nicholson.

RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class B license (No. 117937) be suspended on the effective date of the Registrar’s Order. It is further recommended that if Respondent corrects by appropriate means the items listed in CWO 1 (as summarized in Finding of Fact 25), then no license suspension shall be imposed, but instead Respondent’s license shall be placed on disciplinary probation for a period of 120 days. Such correction shall be completed by a separate duly licensed contractor other than Nicholson. This alternative penalty shall commence, if at all, on the effective date of the Registrar’s Order. Done this day, May 28, 2002

______________________________________ Wendy S. Morton Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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