ALJDEC (decisions subject to certification as fin)

03F-Y0018-ROC · Registrar of Contractors · 2002-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2002 at 1:30 p.m. APPEARANCES: The Complainant appeared through his attorney, David Hossler. The Respondent appeared through its attorney, Wade Noble. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon 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 B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a new residence for the Complainant. 3. The same parties were involved in Registrar of Contractors Case No. Y02- 0071. A copy of the Order issued in Case No. Y02-0071 is attached hereto and incorporated herein as Exhibit “A.” All of the testimony and exhibits presented in the prior hearing were reviewed. 4. Finding of Fact No. 5 in Exhibit A provides as follows: “The other items in the CWO were no longer in issue by the time of this administrative hearing. Only issues surrounding the flooring remained in dispute, and there was no real dispute over the existence of the problem, only over what corrective measures would be necessary to comply with the CWO, that is, to meet minimum workmanship standards.” 5. On or about August 26, 2002 corrective action was completed on the Complainant’s floor. The Complainant was dissatisfied with corrected floor and filed the complaint at issue on August 27, 2002. 6. The parties are in dispute as to whether a compliance inspection was asked for but there was no dispute that the Complainant filed a new complaint regarding the corrected tile floor. 7. Although neither a compliance hearing nor a rehearing, the matter at issue in this complaint is whether the Complainant’s tile floor has been corrected to within applicable industry standards. 8. The prior Order specifically gives the Respondent an opportunity to repair the Complainant’s tile floor rather than replace it. 9. There was no dispute that the Respondent did cause corrective action to take place on the Complainant’s tile floor. 10. Pursuant to the filing of the formal complaint at issue, the same assigned Agency Inspector conducted an additional on-site inspection and issued a written corrective work order directing the Respondent to perform additional corrective action on the Complainant’s tile floor. 11. The parties are in sharp dispute as to whether the directed additional corrective action has been properly performed and as to whether the tile floor, as corrected, now complies with applicable minimum workmanship standards. 12. The Registrar of Contractors does not apply perfection standards when judging workmanship. The standard, as applied by the Registrar, is whether the workmanship involved is within minimum industry standards for good and proper workmanship. 13. Although Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of his new home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 14. There was no credible evidence that the Complainant’s entire tile floor should be replaced. 15. Credible testimony and evidence established that the color of the replacement floor tiles matches the color of the existing floor tiles within applicable industry tolerances. 16. The parties were in sharp dispute as to whether the underlying concrete floor had been properly corrected before the new floor tile was laid. 17. The Minimum Workmanship Standards for Licensed Contractors (pages 16 and 17, item Nos. 9 and 10) provides as follows: “PD (possible deficiency) Uneven or wavy floor. AT (acceptable tolerance) Floors should not vary from flat more than ¼” over a 10’ area provided the deviation is gradual. Deviations, dips, or sags over short distance and easily visible to the eye may be considered unacceptable. CR (contractor responsibility) Contractor should make necessary repairs. 10. PD (possible deficiency) Floors not level. AT (acceptable tolerance) Floors should be level within ¼” in any 12’ run. CR (contractor responsibility) Contractor should make necessary repairs.” 18. The assigned agency inspector testified that he personally inspected the Complainant’s tile floor after the Respondent caused the completion of the additional corrective action on the tile floor and that he found the corrective work and the floor in its entirety to be within applicable minimum industry standards. 19. The credible testimony and evidence of record is insufficient, and fails, to support a finding that the Complainant’s tile floor, as corrected, fails to comply with applicable minimum industry standards. 20. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. . . .

CONCLUSIONS OF LAW 1. Credible testimony and evidence supported findings that the Respond complied with the terms and conditions of the written corrective work order issued in this matter. RECOMMENDATION In view of the foregoing, it is recommended that this matter be closed. Done this day, December 27, 2002.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of December, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 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