ALJDEC

02F-M0248-ROC · Registrar of Contractors · 2002-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 27, 2002. APPEARANCES: Complainant Suzy appeared, representing herself. Qualifying party Epeli Tauveli appeared on behalf of his company Abel’s Professional Landscaping, representing himself. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors such that discipline be recommended against Respondent’s license. Evidence and testimony were presented, and based upon review of 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 C-21 license, License No. 126733, issued by the Registrar of Contractors (Registrar). 2. Respondent was contracted to install backyard landscaping, some brick borders, sprinkler system, and build a barbecue at Complainant’s residence in Phoenix, Arizona. 3. The contract was dated May 11, 2001. The amount of the contract was $3,400.00. Complainant gave Respondent a personal check for a one-half deposit in the amount of $1,700.00, and paid the remaining $1,700.00 in cash on the day the work was completed. 3. No formal plans were drawn up and the parties simply verbally discussed the work to be done. 4. Complainant was unhappy with the barbecue the very next day, when she discovered the edge of the top of the barbecue had cracked. 5. Respondent’s workers did some repair work by sanding off the edge and repairing it with a “compound”. It is noted that the pictures submitted by Complainant show a top and edge that appear to be stuccoed and painted [like flagstone] in an adobe red color. The pictures of this crack and the repair shows a portion of the repair which is a darker reddish color than the remainder of the top and edge. Respondent also repainted the top, which resulted in overspray on the wall generally, on the wall near the barbecue top and in the backyard area in several places. Hearing Exhibits, photos. 6. The top edge cracked again and Complainant continued to be unhappy with the barbecue. Respondent came back in June and made additional repairs. The pictures of this work show an edge portion or the repair which is grayish, as though covered with a stucco compound. 7. Complainant asked for her money to be refunded and the Respondent had indicated to her that he did not have the money, but maybe could give her payments for $1,000. 8. On July 18, 2001, Complainant filed a formal complaint with the Registrar alleging problems with barbecue [vents in the wrong place; propane tank door damaged; inappropriate location of propane tank; barbecue surface not level and cracked; paint overspray; concrete on the brick border; and plywood construction of the barbecue top] and there not being three inches of topsoil under the sod. Complainant also attached two estimates for repairing the barbecue. 9. After a job site inspection, the Registrar’s Inspector Gerald issued a Corrective Work Order (CWO) with regard to making six areas of corrections to the barbecue. The Registrar’s Inspector did not set forth any required action on the lack of top soil, but indicated that Respondent was to address all barren and dead grass in the rear and side yard sod placement areas. 10. In early October 2001, Respondent returned to make some repairs in efforts to comply with the CWO. Respondent filled in some vent openings, rebuilt (built up) the top of the barbecue and painted various areas, and other areas, to cover the overspray from the May repairs. The pictures of these repairs show openings visibly filled in with stucco on the outside and a stack of broken brick inside; the top of the barbecue visibly built up (approximately four inches, per uncontroverted testimony); and the repainted top being a muted safety orange color rather than the previous color of adobe red (which was somewhat of a match to the brick borders installed. Complainant testified that Respondent had torn out the plywood, cut in another door (for the propane tank) but had not made the openings the exact same size, and replaced some sod (but had not added any top soil). 11. On October 15, 2001, Complainant requested of the Registrar that the matter be reopened and go forward for hearing. 12. On November 1, 2001, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23, and 32-1154.A.3. 13. Respondent filed his written answer, indicating the spelling of his last name to be Tauveli. Respondent stated that he had taken care of the repairs and that the Complainant had been “ok with it”. Respondent indicated that Complainant was to get the sample of the paint from the builder so they could come back to finish the job, but that Complainant was not returning his phone calls. 14. The matter remained unresolved, and was set for formal administrative hearing. 15. At the hearing, the Registrar’s Inspector testified regarding his August 21, 2001 job site inspection and the pre-hearing inspection. The Inspector testified that, at the job site inspection, the barbecue top was not finished and was out-of-level, but now had a stamped acrylic top. The Inspector testified that the original vent openings were unnecessary and that Complainant had wanted them removed, and that Respondent had now filled in and stuccoed over them but the stucco texture visibly did not match. The Inspector testified that the fire rated opening had now been created and a fire wall had been built, but the access door had not been installed. The Inspector testified that the painting which had been done to cover overspray visibly did not match. The Inspector testified that some grass appeared to be dead then and now, but that he had not seen evidence of a top soil problem. The Inspector testified that, overall, the work simply could have been done better and thought the work had been ill supervised. 16. Complainant testified that she did not want Respondent to come back to do any other work because it had been over a year and she still had not been able to safely use the barbecue. 17. Respondent testified that he had tried to make the repairs and that he was waiting on the paint color so he could get the painting redone. Respondent testified that he was asking Complainant to let him complete the job and that he would still do the best that he could. Respondent testified that whatever the Tribunal decided would be fair and he thought it would be minor to make the remaining fixes. Respondent testified he wanted to supply the effort to fix things because another contractor would come in for a higher price. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. … .

CONCLUSIONS OF LAW 1. According to contracting law, Respondent is responsible to complete any contracted construction activity in conformance with applicable workmanship standards and applicable building codes. The evidence and testimony at hearing established that Respondent was directed to make corrective repairs and accomplished some, but not all, of the corrective work. Therefore, Respondent is in violation of A.R.S. §§32- 1154.A.3 and 32-1154.A.23. 2. The failure to complete the repairs may also be determined to be a violation, by Respondent, of A.R.S. §§32-1154.A.7, a wrongful act. In this case, Complainant did not prove any fraudulent act by Respondent. 3. There was insufficient proof of Respondent’s licensing status as to whether or not he may appropriately complete a barbecue structure. In its Citation and Complaint, the Registrar did not cite Respondent for working outside the scope of his license. Therefore, it is unclear whether Respondent may also have another license in addition to the C-21 license. However, a C-21 license is only for landscaping, irrigation, decorative fences and planters standard to the industry. Respondent’s C-21 license does not authorize him to construct retaining walls over three feet, decorative walls or fences over six feet, or perimeter walls. 4. The administrative hearing process cannot mediate the solution and the best order of remedial steps. However, this process will essentially direct that a responsible licensed contractor do the directed work with the cooperation of the homeowner. A homeowner’s refusal to allow access is a contractor’s defense against doing or having the work done by another appropriately licensed contractor. Complainant has not shown that Respondent should not be allowed to make the corrections in order to resolve the matter and avoid license discipline. A properly licensed contractor may make corrections himself or through a properly licensed contractor. RECOMMENDED ORDER 1. In view of the foregoing, IT IS RECOMMENDED commencing on the effective date of this ORDER, that the Respondent’s Class C-21 license be suspended for one week or until the Registrar receives written proof that Respondent has completed the directed repairs to the appropriate workmanship standards: repair the block openings on the front face of the barbecue structure; install the access door; remove construction debris and/or repaint the construction overspray areas to match as close as possible; and address all barren and dead grass in the rear and side yard sod placement areas. Respondent may accomplish the work he is properly licensed to so do, and must use a properly licensed contractor for any repair work he is not properly licensed to do. 2. IT IS FURTHER RECOMMENDED that, if the Respondent accomplishes the recommendation herein, or the parties otherwise settle the matter financially, and the parties so advise the Registrar, on or before the effective date of that ORDER, then the above recommended license suspension shall not take place and Citation No. M02-0248 shall be closed. RECOMMENDED this day, March 21, 2002.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this _____ day of March, 2002 to:

Registrar of Contractors Mr. Michael P. Goldwater 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