ALJDEC decisions subject to certification as final

05F-1623-ROC-com · Registrar of Contractors · 2008-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 2008 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, James Csontos. ADMINISTRATIVE LAW JUDGE: Mark A. Silver ________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors to conduct a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. On September 3, 2008, the Registrar of Contractors issued a Notice of Compliance Hearing.

2. Based on the above-described Notice of Compliance Hearing, the parties were advised at the outset of the hearing that the scope of the instant hearing was very limited and no issues unrelated to the issue of compliance and possible reconsideration of a disciplinary penalty would be determined at the instant hearing.

3. On the second day of the original hearing in this matter, the parties advised that they had reached a settlement of their dispute. A Decision and Order was issued based on said settlement agreement and the settlement provided as follows:

a. Respondent agreed to complete all of the remedial work set forth on Complainant’s exhibit no. 29, which is attached hereto.[1] The work is to be completed in a proper workmanlike manner, in accordance with the standards applied by the Registrar of Contractors, on or before December 1, 2006. b. The remedial work will be performed during the hours of 8:00 a.m. to 4:00 p.m., Mon-Fri, and only after Respondent gives Complainant reasonable notice of its intent to appear at the residence to perform said remedial work. c. In the event Complainant is not satisfied with any of the remedial work performed by Respondent, Complainant will immediately notify Respondent of any such dissatisfaction (emphasis added). d. Complainant agreed to withdraw the filed Complaint. e. The parties understood that this agreement only affects the instant filed Complaint and there may be other issues, such as money disputes, which may have to be addressed and/or resolved through other forums.

4. Respondent called the Registrar of Contractors’ inspector as a witness at the hearing. The salient portions of the inspector’s testimony included the following:

a. He conducted a pre-hearing jobsite inspection. b. At the outset of the scheduled pre-hearing inspection, Complainant advised that he was only questioning thirteen (13) of the items on the above-described exhibit no. 29; namely 5,6,7,8,9,10,16, 24,29,30,32,33, and 36. Item no. 36 was crossed out on the original sheet of exhibit no. 29 and thus, the inspector did not consider this issue. c. Issue no. 5 deals with nail pops and drywall cracks. Although the inspector observed a number of existing nail pops and hairline cracks, he indicated that the Registrar of Contractors’ standards only require a contractor to repair such issues one time within the first year of occupancy. He believes that this same one year standard should apply to repair work. The repair work performed by Respondent was performed in 2006 and the pre-hearing inspection was not until 2008. d. Issue no. 6 involves paint repairs. He did observe one minor area where there was no straight paint line in a specified area where a wall abutted a door casing in the laundry room. e. On issue no. 7, regarding exterior paint defects, he observed an area below the master bedroom window which was discolored. It looked to him like the problem was due to efflorescence. He did not have any information regarding whether or not this area had been repainted after the issuance of the Registrar of Contractors’ Decision and Order or, for that matter, whether or not the condition occurred during the first two years of occupancy. f. In regard to issue no. 8, although the inspector observed some hairline cracking in the tile grout, he opined that this type of cracking was within normal standards for a home of this age. g. On issue no. 9, he did not find any loose tiles or tiles that were popped out of place. Complainant tried to raise an issue of hollow sounding tiles, but said issue was not part of the settlement agreement and was thus, disallowed. h. On issue no. 10, the inspector failed to see any caulk requiring corrective work. i. On issue no. 16, the inspector again testified that caulk repairs are a one year responsibility for a contractor and then becomes an item of homeowner maintenance. He did see some voids in the caulking of the baseboards but could not determine if these areas were corrected by Respondent in 2006 and then separated, or whether it was caulk that had separated from the original date of occupancy of the home. j. In regard to item no. 24, the inspector found that the hinge for the garage entry door was very noisy. He had no idea whether Complainant had ever lubricated the hinge. k. On issue no. 29, he did observe a couple of small exterior stucco cracks but he had no way of knowing if said cracks had been present in 2006. l. Issue no. 30 required Respondent to seal around the existing gaps in the “j-weeps.” He found a gap adjacent to the front entry door. m. On issue no. 32, Respondent was required to correct the drainage in the area of the north end of the house. He found compliance on this issue. n. Issue no. 33 was the roof truss issue. This item provided that Respondent should “properly repair sagging roof at east and west side of house…” This was an issue that had been litigated in the arbitration proceeding between these parties, which resulted in a money judgment for Complainant. Thus, the inspector did not form an opinion on this item.

5. Evidence of record demonstrated that on issue no. 33, of exhibit no. 29, Respondent did not perform any work on the trusses. However, Respondent did supply Complainant with a report from the truss company’s project designer, dated November 3, 2006, which provided, in pertinent part, the following information:

“All trusses are expected to deflect under load. Limits for maximum allowable deflection are set forth via industry standards, building codes, and engineering specifications…The A1 truss is performing satisfactorily within allowable limits.”

6. Based on the information Respondent received from the truss designer, Respondent determined that it was not required to perform any work on the trusses, notwithstanding the language in the settlement agreement, which required it to “properly repair the sagging roof.” Complainant was not satisfied with this approach and sometime in 2007 asked that further investigation be made on the truss system. Due to scheduling conflicts between the parties and the failure of an engineer to appear for a scheduled meeting the issue was never resolved until the matter was heard at an arbitration proceeding between the parties, which was requested by Complainant.

7. Evidence of record showed that the arbitrator awarded Complainant monetary damages, which included compensation for remedial work on the trusses.[2] Respondent tendered a check to Complainant’s attorney’s trust account but the check was never accepted and Complainant still has not received the funds.[3]

8. The weight of the evidence of record supports a finding that Respondent failed to achieve total compliance with all of the terms and conditions of the prior Decision and Order of the Registrar of Contractors, as manifested by its failure to properly repair the truss system, which was affirmed by the arbitration award. In addition, the weight of the evidence of record was sufficient to support a further finding of non-compliance on the following enumerated items from exhibit no. 29:

6. The lack of a straight paint line on the area where a wall abuts the door casing. 24. The noisy hinge. 30. The existing j-weep gap at the front entry door.

9. All other enumerated items of exhibit no. 29, presented at the instant hearing, were either corrected, not adequately shown to be workmanship deficiencies, as applied by the Registrar of Contractors, or matters of homeowner maintenance after the significant passage of time.

10. 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. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work.

11. The prior Decision and Order of the Registrar of Contractors required Complainant to immediately notify Respondent of any deficiencies or concerns regarding the remedial work. Evidence of record not only showed that Complainant failed to provide Respondent with the required immediate notice of problems with the remedial work but on or about November 16, 2006 Respondent sent a letter to Complainant advising that the remedial work was completed and indicating that since Respondent had not heard otherwise, it assumed that Complainant approved all of the work. Complainant failed to respond immediately to the content of this letter.

12. Both Respondent and Complainant had obligations under the settlement agreement and to some degree they both failed to fulfill all of their respective obligations and thus, they are both found to be in non- compliance with the Registrar’s Order. Moreover, Complainant’s failure to comply with his obligations under the settlement agreement, militates for the conclusion that no immediate discipline should be imposed against Respondent’s Class B license.

13. Under the facts and circumstances presented herein, Respondent should be given one, and only one, final opportunity to comply with the Registrar’s Order, as a means to avoid disciplinary sanctions against its license and Complainant must provide the required access during the business hours set forth in the original Decision and Order.

14. Based on a standing motion filed with Registrar of Contractors at the Office of Administrative Hearings, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding Respondent and same revealed that the instant Complaint was the only Complaint on Respondent’s record. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this compliance hearing.

CONCLUSIONS OF LAW

1. Respondent failed to fully comply with the terms and conditions set forth in the original Decision and Order issued in this matter.

2. In view of Respondent’s failure to accomplish total compliance with the original Order of the Registrar, it is determined that a disciplinary sanction should be imposed against Respondent’s Class B license, if it fails to comply with the conditions of the instant Order on Compliance hearing.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact no. 8, above and pays or tenders to Complainant the complete award from the arbitration proceeding, including any required interest.[4] It is further recommended that if Respondent complies with the above- described conditions or is denied reasonable access by Complainant on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation, together with the Complaint upon which it is based, shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, October 20, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Exhibit no. 29 is also attached to this Decision and Order on Compliance Hearing. [2] The award from the arbitrator took into account contract payments previously withheld by Complainant. [3] Complainant has terminated the services of his original attorney and the check in question was recently returned to Respondent’s attorney. [4] Complainant made an election of remedies regarding the truss issue and therefore, by virtue of commencing the arbitration proceeding and including said issue therein, Respondent is not required to perform any remedial work on said issue but merely to pay the appropriate amount of the arbitration award.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826