ALJDEC decisions subject to certification as final

03F-P0196-ROC · Registrar of Contractors · 2004-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, January 6th, 2004; 1:30 p.m. APPEARANCES: Complainant, Mr. Haskie Benally, appeared and was represented by Mr. Thomas E. Johnson, Attorney-at-Law. Respondent, G Bar S Construction, Inc., was represented by Mr. Gregory A. Cluff, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________

The administrative hearing of this matter was held by the Office of Administrative Hearings, in Show Low, 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. Respondent. G Bar S Construction, Inc., was during all time material to the construction which is the subject of this complaint, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 123306. That license was subsequently canceled. The same Qualifying Party appearing on the canceled license obtained a new Class B License from the Arizona Registrar of Contractors as a sole proprietorship operating as G Bar S Construction. Mr. Cluff’s new license number is 184023. 2. Respondent, as a licensed Arizona contractor, constructed Complainant’s residence in Show Low, Arizona. Construction was completed and Complainant and his family took possession of the home in the spring of 2001. 3. Complainant was dissatisfied with several aspects of the construction, and summoned Respondent back to the job site to make corrections. Respondent made several corrections to the work, but the home was still not satisfactory to Complainant when he filed the instant complaint with the Registrar of Contractors on March 20th, 2003. 4. The complaint was assigned to Registrar of Contractors Inspector Tom Sandoval who conducted a job site inspection in mid-April 2003, and issued a written Corrective Work Order to Respondent dated April 17th, 2003. The CWO directed Respondent to make several corrections to the Complainant’s home. The inspector allowed 15 calendar days from the date of the CWO for the corrections to be made, which was a reasonable amount of time. 5. Respondent did return during the 15-day period allotted by the CWO, and made several corrections to the items. However, not all of them were corrected to the entire satisfaction of Complainant, and he requested an administrative hearing be held on six of the items appearing in the CWO. One of those items is an item the Inspector found to require no action by the Respondent, a conclusions with which the Complainant disagrees. 6. The six items enumerated in the CWO were considered at the hearing, and will be here considered, in the numerical order they there appeared. They are: Items ##1, 2, 13, 15, 18 and 22. At the hearing, Complainant testified that Item #13 had been corrected by Respondent and was no longer an item of complaint. Thus there remained five items to be considered. 7. Item #1 was “Front door does not close properly.” The Inspector testified at the hearing his finding made at the pre-hearing inspection he conducted the day prior to the hearing, that this item had been corrected. The front door did operate properly; it did close and latch. He further testified that at the pre-hearing inspection he did detect that the reveal around the door was then uneven. The Inspector testified to Registrar of Contractors’ policy on correction of door items such as this one, it being that a contractor is responsible to return and correct an improperly functioning door once within the first year of occupancy, and thereafter the door function becomes a homeowner maintenance issue. The rationale for the policy being that doors are such a heavily used fixture that the contractor is required to return and correct only once in the first year. 8. Complainant testified that the front door still does not close properly; that one must lift it to close it. Mr. Cluff testified that after making the correction Complainant’s wife accepted the door. The conflicting evidence of the parties taken with the disinterested testimony of the inspector proved that Respondent did correct the door to within minimum workmanship standards. The reveal was not a part of the complainant’s complaint, only the door function. Respondent has no further responsibility to correct Item #1. 9. Item #2 was “Sliding glass door at rear of home is bulging in the center.” Respondent Mr. Cluff testified that he had returned and replaced the rollers, cleaned and replaced the threshold, and that there is no bulge. He testified that Complainant’s wife and son both accepted the door after he had performed his corrective work. Mr. Cluff’s testimony was corroborated by that of he Inspector, which he gave based on his pre-hearing inspection. Complainant testified that the bulge remains, but was evidently trying to bootstrap the bulging door complaint onto a new complaint, made for the first time, about concrete and lack of paint. The preponderance of evidence proves that Item #2 has been satisfactorily corrected. 10. Item #15 was “In the garage there is water damage on the upper northwest corner, ceiling and paint is peeling at the exhaust vent.” The CWO directed Respondent to “determine cause and correct by appropriate means.” As to this item the Inspector testified that at the pre-hearing inspection he saw that where a roof vent, or jack, over the affected area had been originally missing, it was now properly installed. He also testified to having seen where the Respondent had performed some touch up painting work. Mr. Cluff testified that the corrective work was performed; that the roof vent was properly installed and sealed. Complainant testified that the area has not been corrected, and water still enters. Again, weighing the equal and contradictory testimonies of the opposing parties, and then throwing into the balance that of the disinterested Inspector, the greater weight of evidence lies on the side of Respondent. It is found that Item #15 was corrected. 11. Item #18 is “Storm damage to the shingles on the east top of home.” The Inspector concluded in his CWO that “This is not a workmanship issue due to high winds. No action required.” Both Complainant and Mr. Cluff for the Respondent offered extensive testimony about their position as to the cause of shingles being blown off Complainant’s roof. Complainant testified it was due to poor workmanship ( lack of nails and failure to remove a cellophane strip covering tar on the underside of shingles. 12. Inspector Sandoval testified that at the job-site inspection he could not verify the lack of nails, but did verify that there had been high winds in the area. He concluded that the shingles being blown off was not an event related to poor workmanship, but to the winds. Since the job-site inspection Complainant has repaired the roof. 13. Mr. Cluff testified that in his years of experience he has never seen any contractor remove the cellophane strip, and doing so is unnecessary. Inspector Sandoval testified in like manner. Mr. Cluff also testified that he verified the fact that seven homes in the vicinity of Complainant’s had also suffered wind damaged roofs at the same time in question. 14. There is insufficient evidence to find that the shingles being blown off the roof was the result of poor workmanship. 15. Item #22 is: “Water damage to the sheeting in the attic area over the north east bedroom.” According to the CWO the Respondent was “to determine cause and correct by appropriate means.” The Inspector testified that at the job site inspection he had no ladder and could only stand on a footstool and peer up into the attic. So he could not even determine that this condition was caused by the contractor, which is why he stated in the CWO only that the contractor was supposed to first “determine cause.” At the pre-hearing inspection, so testified the Inspector, again he had no ladder or footstool. He could not testify as to any corrective action. Complainant produced no photos of this condition as it exists. He just thinks its leaking somewhere. He testified, “It just looks like the water has been dripping.” According to Mr. Cluff’s testimony, he did go up into the attic and saw no water damage, no distortion of the insulation. There is insufficient evidence to find for Complainant in this issue. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154A.7., 23., and 3. 3. As to the five issues brought to and heard at the administrative hearing, the evidence either disproved the allegations as to the item in question, lacked sufficiency to find for the Complainant as to it, or proved that it had been corrected in a timely fashion. There is therefore no factual basis to support a conclusion that Respondent is in violation of A.R.S. §32-1154.A.7., 23., or 3. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint Number P03-0196 be closed. Done this day, January 21st, 2004.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 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