ALJDEC

02F-F0022-ROC · Registrar of Contractors · 2002-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2002 APPEARANCES Complainant was represented by her attorney, Whitney Cunningham, and Respondent was represented by its attorney, Bruce Urdang. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to accomplish new home construction. Complainant alleges certain deficiencies in the work performed and/or materials provided and same are discussed in the findings below.

2. Although the complaint filed in this matter contains a rather lengthy list of issues, at the outset of the scheduled hearing Complainant averred that the instant hearing would be limited to a consideration of only the issues of the finish on specified cabinet toe-kicks, the threshold and weather-stripping on the laundry room/garage door, the finish on a kitchen window, grout cracks on the exterior tile, the door knob installations, the blockage of the weep screed holes, and an allegation regarding damaged plywood material under the tile deck. Notwithstanding the fact that Complainant removed all remaining issues from consideration at the instant hearing, she refused to indicate that same were either fully resolved or corrected but instead merely indicated that she was waiving her right to pursue said issues at the instant hearing.

3. The weight of the credible evidence of record was sufficient to support a finding that the following constitute construction deficiencies attributable to Respondent’s workmanship and/or materials:

a. Although Respondent performed specified corrective work in order to make the “toe-kick” areas of the cabinetry more closely match with the cabinets, it was adequately demonstrated that there remain two areas in the master bathroom where the “toe-kick” veneer is too light, in comparison to the adjacent toe-kicks. Other areas of the cabinetry “toe-kick” veneer were not sufficiently shown to be beyond acceptable industry aesthetic tolerances. b. Pursuant to a prior Order of the Registrar, the only issue remaining on the door from the laundry room to the garage involved the threshold and weather-stripping. Respondent was shown to have performed further remedial work on the door and as a direct result thereof, the issues regarding the weather-stripping and the threshold have been resolved. Nevertheless, there now remains an issue regarding the adequacy of the operation of the door’s self-closing device and since Respondent was working on said door as a result of the threshold and weather-stripping issues, contrary to Respondent’s objection, the manner in which the door now closes is determined to be an appropriate issue for the instant hearing. c. Respondent contends that one of the individuals living in Complainant’s home directed it to make the door close slower and that said slowing of the closing device would normally cause the door to fail to latch. Complainant and the other person living in the home deny that they ever told Respondent to take the door closing device out of code. Complainant wants the self-closing device to be within code requirements. Notwithstanding Respondent’s claim that Complainant or the other person living in said home directed it to adjust the force of the self-closing device, without an adequate written waiver and/or disclaimer, it remains responsible to assure that the door installation meets all applicable code requirements. d. Although Respondent corrected the bent window frame on the kitchen window, there remains an area on the interior of the window where the finish has deteriorated. It was adequately demonstrated that said finish deterioration was not only premature but likely caused by moisture coming in through the previously bent exterior portion of the window frame. Regardless of any language contained in the Registrar’s publication, “Minimum Workmanship Standards for Licensed Contractors” (“Standards”), that provides that a contractor need only repair paint or finish deterioration one time during the first year of occupancy, the Standards booklet is determined to be merely a guideline and does not constitute law. Pursuant to applicable statutory provisions of the State’s Contracting laws, a homeowner may file a complaint regarding workmanship deficiencies for a period of two (2) years from the date of occupancy. In light of the fact that the finish issue described herein appears to be attributable to the workmanship deficiency in the window frame and not normal “wear and tear,” Respondent remains responsible to correct the deterioration in the kitchen window frame finish. e. Notwithstanding Respondent’s efforts to correct any deficiencies in the operation of the exterior door knobs, the north kitchen exterior door knob dead-bolt and/or latch was shown to excessively stick when operating to open or close. The record presented was inadequate to show that any other door knobs in the home also failed to operate properly. f. Respondent completed specified remedial work on the exterior saltillo tile patio. When the work was completed and the tile sealed both parties agreed that the tile installation looked good. Shortly thereafter, it rained and a white film of some type appeared on the tile installation. Although Respondent attempted to clean this white film for Complainant, evidence of record demonstrated that some white film remains primarily on the dark gray grout lines, along with certain areas of the tile surface. Since Respondent undertook to clean the tile, its cleaning efforts need to be complete. g. Although it was not clear what caused the above-described white film on the exterior saltillo tile and grout, there was some indication that it could be natural occurring efflorescence or possibly even “dirty rain.” Evidence of record demonstrated that there is no way to seal out efflorescence from occurring on an exterior saltillo tile installation. Thus, in the event that efflorescence or dirty rain are the cause for the white film on the tile, any future appearance of the white film shall be deemed to be a homeowner maintenance issue.

4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Respondent made a considerable and apparent good faith effort to comply with all of the requirements set forth in said Agency directive, albeit somewhat belatedly. According to documentation in the Registrar’s file, there may have been problems with access that could have contributed, in part, to Respondent’s failure to timely comply with the Agency directive. In addition, administrative notice is taken of the Registrar’s findings on compliance hearing in case no. F00-0313 wherein the Registrar’s Order stated in Finding of Fact no. 13 that “the lines of communication between the parties have been strained.”

5. Although based on the foregoing Findings of Fact, Respondent may not have accomplished total compliance with the aforementioned Agency directive, under all of the facts and circumstances presented herein including, but not limited to, the nature of the remaining remedial work, the evidence of record does not warrant any finding of a failure to comply with the spirit and intent of the charged section of the State’s Contracting laws regarding the requirement to comply with an Agency directive.

6. The evidence and testimony presented at the instant hearing was found to be inadequate to sustain any violation of the State’s Contracting laws regarding the following:

a. Evidence of record showed that Respondent had unplugged the previously plugged weep screed holes, so that the weep screed is now able to operate properly. b. Complainant has concerns referable to her claim that when Respondent replaced the upper level patio deck tiles, that it completed said installation, including the placement of a water tight membrane between the tile and the deck structure, over already wet and damaged plywood. The evidence of record showed that said deck tile replacement work was completed sometime in the Spring of 2001 and there have not been any further problems with the deck leaking or the structural integrity of same. Moreover, it was adequately demonstrated that the type of plywood decking material would not have been significantly damaged merely by some limited exposure to water. The Registrar may not engage in speculation and since all portions of the replaced upper level deck appear to be functioning properly at this time, it is determined and held that Complainant has failed to sustain the requisite burden of proof necessary to establish any defect in the plywood material beneath the tile surface of the upper level deck.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 3(a) and 3(c) through 3(f). It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 120 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later.

Done this day, January 25, 2002

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826