ALJDEC (decisions subject to certification as fin)

03F-T0264-ROC · Registrar of Contractors · 2003-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, April 11th, 2003; 9:00 a.m. APPEARANCES: Complainants appeared and were represented by Ms. Laura E. Schoeler, attorney-at-law. Respondent appeared and was represented by Ms. Heather K. Gaines, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard 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, Doucette Homes, Inc., 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 124550. 2. Complainants, Edward and Lynn Schoeler, a married couple, desired to have their new home constructed in Tucson, Arizona, in 2000. They met with respondent that year to discuss the type of house they wanted built. Complainants had been referred to respondent by Fairfield Homes, another builder, because complainants desired to have built a modified version of one of Fairfield’s home plans, and Fairfield did not do such modified construction. 3. Complainants settled on a modified plan of the Fairfield Home, and contracted for its construction. Complainants agreed to pay for the actual construction costs themselves, and, with respondent, entered into a construction management contract, whereby complainants would pay respondent $15,000.00 for site supervision, and $20,000.00 for profit and overhead. 4. Pursuant to the contract, respondent agreed to “complete the design of the Residence in accordance with the Owners’ specifications, [and] the plans attached hereto as Exhibit A.” 5. Considering the contractual agreements, complainants naturally took a hands-on approach to the construction. They had extensive dealings with the subcontractors and selections of fixtures for their home. Still, they were paying a handsome sum to respondent to provide supervision of the building, and to see to it that their specifications were heeded, as complainants were not experienced contractors, while respondent was. 6. As the construction progressed, complainants’ involvement with the work did likewise, as they became dissatisfied with the degree of supervision being given by respondent. 7. Complainants were dissatisfied with several aspects of the construction of their home after they took possession, and filed the instant complaint against the respondent license on or about September 18th, 2002. 8. The complaint was assigned to Registrar of Contractors Inspector Ed Monahan who conducted a job-site inspection on or about October 8th, 2002. He issued a Corrective Work Order to respondent dated October 8th, 2002. In it he listed 38 items, as to some of which he ordered corrections to be made within 15 calendar days of the CWO, which was a reasonable amount of time. Not all of the corrections were made, and the relevant ones will be addressed below. 9. First, complainants complain that they did not receive the correct square footage in their home; that many of the rooms and garage are not as large as they should have been. Based on all the evidence, it is found that there is insufficient evidence to conclude that the dimensional issues of the house should be resolved in favor of complainants. 10. Second, complainants raise several money issues about payment on the contract, failure to perform in a timely manner resulting in construction loan penalties and added costs, all of which are good faith money disputes between the parties which should be resolved more properly, if at all, in a civil court of competent jurisdiction. 11. As to particular items of the construction, complainants raised an issue with the master bathroom plumbing, claiming it was plumbed backwards. That is, complainants say the bathtub is set with the drain away from the edge of a two-way fireplace on the other side of the tub, which forces the bather to sit with his or her head resting within a few inches of the fireplace. 12. The inspector ordered this condition to be corrected by appropriate means, but testified less forcefully upon cross-examination. 13. Complainants’ evidence is that the plans clearly show a two-way fireplace; respondent’s evidence is that the plans clearly show a one- way fireplace. However, it is clear from the evidence that complainants from the very onset in their dealings with respondent, made it consistently clear that they were specifying a two-way fireplace in the master bathroom. The contract calls for the construction to be in accordance not only with the plans, but with complainants’ specifications as well. 14. The workmanship itself to the master bathroom plumbing itself is not defective in any regard. Had the specification been for a one-way fireplace, or had there been no fireplace at all, the plumbing, including the bathtub, would have been perfectly all right. It is the incompatibility in the way the bathtub communicates with the fireplace that presents the problem. The problem is more than aesthetical, in that the bather must either sit on the drain side or face away from the fire with his or her head next to the fire. The condition presents a safety hazard. This condition must be corrected by appropriate means. 15. The evidence included the fact that the concrete slab under the bathtub is post-tension cable and slab, and any correction involving invading the concrete would be difficult and could be dangerous. Still, the evidence shows that it was respondent’s fault for not coordinating the bathtub with the fireplace during the construction, and the way it exists now is a safety hazard. Moreover, the complainants’ evidence includes corrective options not calling for interfering with the existing slab. 16. The evidence proved that respondent constructed concrete pads to receive placement of the HVAC unit which were too small for the unit per manufacturer’s specifications. The evidence proved that county code requires the slabs to be consistent with manufacturer’s specifications. Although the inspector did not order the condition to be corrected, he did order respondent to give assurance that the small pads would not nullify the warranty for the air conditioner. Respondent’s evidence provided some hearsay that the warranty was still good. However, complainants’ evidence proved that the pads were too small as judged by the manufacturer’s specifications. Thus the size of the pads must be corrected by appropriate means. 17. Another item of dispute is the malfunctioning ceiling fan in the office. The inspector found that the fan’s function was altered by the electrician to perform other than as specified by complainants. Respondent produced some hearsay evidence that the fan worked initially, but then spontaneously stopped, but the greater weight of evidence is in favor of complainants’ position in this issue. Respondent should correct the function of the study fan in accordance with the inspector’s CWO. 18. Another item in dispute is the range hood and vents. Complainants had wanted a specific range hood and the necessary venting to go along with it, and it is found that respondent failed to provide the range components complainants had specified. However, complainants themselves have already paid a third party to correct this item, and it has been corrected. They seek restitution of what they claimed were their out-of- pocket expense to correct this mistake: however, their proof of what amount they would receive as restitution lacks precision, and it is found that to arrive at an amount of restitution based on the record would be too speculative. 19. The final particular item of dispute is the shower stall in the guest bathroom. The shower stall’s glass enclosure is several inches shorter than six feet. Respondent’s subcontractor was responsible for the measuring of the fixture to be installed in both the guest and master bathrooms, and erred making both measurements. The error as to the master bathroom enclosure was corrected, but the measurement error in the guest bathroom shower enclosure was left uncorrected. Now average- sized adults must duck their head to enter the shower, and when the shower head is operating the enclosure does not enclose all the water. Respondent contends that complainants were responsible for selecting the fixture installed, but it is found that complainants selected only the style, not the dimensions, of the enclosure. Respondent should correct the guest bathroom shower enclosure by appropriate means. 20. Notice is taken of respondent’s prior license record with the 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 herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.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 amount of time, after receiving a written directive from the registrar. The written directive in this case was the inspector’s corrective work order. Respondent failed to make all corrections in the CWO, without valid justification, within a reasonable amount of time. Respondent violated A.R.S. §32-1154.A.23. 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule in this case is A.A.C. R4-9- 108, Workmanship Standards. Sections A. and B. of that rule require all work by a licensed contractor to be performed “in a professional and workmanlike manner,” and per all applicable codes. As found, the work performed on the bathtub/fireplace installation, HVAC slabs, office fan, range hood and vents, and guest bathroom shower enclosure, were not professional and workmanlike. Thus respondent violated the applicable rule and statute. 5. 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 insufficient evidence to find a violation of this statute independent of the violations already concluded. 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 124550 be suspended until such time as the registrar receives written proof that respondent has corrected by appropriate means the bathtub/fireplace arrangement; the size of the HVAC slabs; the office fan’s function, and the guest bathroom shower enclosure. It is further recommended that if the registrar receives written proof that respondent has corrected the above items, 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 no license suspension shall occur, and Citation and Complaint number T03-0264 shall be closed. Done this day, May 16th, 2003.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of May, 2003, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ____________________________ -----------------------