ALJDEC decisions subject to certification as final

03F-P0248-ROC · Registrar of Contractors · 2004-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, January 6th, 2004; 8:30 a.m. APPEARANCES: Complainant, Ms. Myrtle McCawley, appeared and represented herself. Respondent, Westbrook Brothers Construction Company, was represented by Mr. Don Carroll, 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 herein, Flying W Ranch, Inc., doing business as Westbrook Brothers Construction Company, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 158375. 2. Acting it its capacity as a licensed Arizona contractor, Respondent installed natural wood siding onto Complainant’s Pinetop, Arizona residence. When the log siding began to fall off, Complainant filed the instant Citation and Complaint with the Registrar of Contractors on or about June 12th, 2003. She complained that the Respondent had used nails that were in violation of code requirement by being too short. 3. The complaint was assigned to Registrar of Contractors Inspector Tom Sandoval, which conducted a job site inspection, and issued a written Corrective Work Order to Respondent dated June 26th, 2003. The CWO directed Respondent to return and correct by appropriate means: “Nailing on some of the siding is excessive and some not nailed.” The Inspector allowed Respondent 15 calendar days from the date of the CWO to perform the correction. The Inspector found that the siding that was coming off was due to lack of sufficient sealer stain or “worn out.” He concluded that the sealer stain inadequacy was not the responsibility of this Respondent. 4. The Inspector testified at the hearing that he did not inspect at the job site for the presence of nails which were too short, stating that such item was not a part of the complaint. However, that is precisely the subject of Complainant’s complaint to the Registrar of Contractors.

5. The evidence at hearing did nothing to disprove the notion that there was inadequate sealer stain used, and Complainant did not seem to dispute that fact. But the other evidence also proved that the nails used by Respondent were too short as judged by the manufacturer’s specifications, if not local building codes. 6. Each party produced contradicting hearsay testimony that they had been told by officials at the local building authority that the nails were or were not per code requirements. The Inspector offered his own hearsay evidence that he had been told by someone at the local building authority that the nails were within code requirements. The Inspector further testified that if he is satisfied in his own mind that a condition meets code, the manufacturer’s specifications become irrelevant. 7. Complainant’s evidence was that the nails used were only 2 ¼” long, while Respondent testified that he used 2 3/8” nails. Complainant produced an inspection report by Cooley Forest Products which added weight to her contention that the nails were 2 ¼” inches long. It is found that Respondent used 2 ¼” nails. 8. The 2 ¼” nails were too short to perform properly the function of holding the siding to Complainant’s house. Notwithstanding the fact of the inadequate sealer stain, the nails were simply too short to penetrate through and attach the siding panels to the sheathing and studs. 9. Complainant produced not only the inspection report of Cooley Forest Products, but the manufacturer’s specifications as well, both of which add substantial weight to her contention that the nails were too short for the intended purpose. 10. Prior to the Inspector’s job site inspection and issuance of the CWO, Respondent did heed Complainant’s call to fix the problem by returning and adding more and longer nails to the siding. While this did not correct the problem, it did lead to part of the CWO saying at places the nailing was excessive. 11. Complainant has since refused this Respondent access to make any further corrections. She disagrees with the CWO, regarding the addition of more nails at this time to be pointless. Nor is she willing to allow Respondent back on site to make the correction she feels is necessary: complete removal and proper replacement of the siding. She wishes to have another contractor perform that work. 12. It does appear from the preponderance of the evidence that the nails used were not pursuant to manufacturer’s specifications, and contributed substantially to the falling off of the siding. By now the siding has undergone significant splitting and rotting. The siding job needs to be removed and properly replaced in accordance with all applicable codes and minimum workmanship and industry standards. It is Complainant’s responsibility to see to it that the job is properly sealed and stained. 13. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. 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 cited in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.2., 7., 23., and 3. 3. A.R.S. §32-1154.A.23., prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractors’ laws of the state of Arizona, without valid justification, within a reasonable period of time, after receiving a written directive from the Registrar. The written directive in this case is the Corrective Work Order. Although Respondent did not comply with the CWO it is because Complainant did not wish to see Respondent return simply to add more nails. Thus, Respondent has valid justification for not complying with the CWO. There is no violation of A.R.S. §32-1154.A.23. 4. A.R.S. §32-1154.A.2. prohibits a licensed contractor from departing from or disregarding either “plans or specifications” or “building codes.” Even if the facts did not prove a departure from or disregard of codes, they surely proved a departure from and disregard of the manufacturer’s specifications, which contributed to the failure of the siding. Respondent violated A.R.S. §32-1154.A.2. 5. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the Registrar. The rule cited here is A.A.C. R4-9-108, Workmanship Standards. Respondent violated this rule and thereby violated the cited statute by ignoring the manufacturer’s specifications, the doing of which was poor workmanship. 6. A.R.S. §32-1154.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 statute independent of the violations already concluded to have occurred. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class B License number 158375 be suspended until the Registrar of Contactors receives written proof that Respondent has caused another properly licensed contractor to properly remove and replace the siding at Complainant’s house (sealer stain being Complainant’s responsibility) in accordance with the original contract. It is further recommended that if Respondent sees to the proper accomplishment of the above described corrective action, on or before the effective date of this order (40 days after the date of service shown by the Registrar’s certification on the order) then the above provided license suspension shall not occur, and Citation and Complaint number P03-0248 shall 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