ALJDEC decisions subject to certification as final

06F-1937-ROC-com · Registrar of Contractors · 2008-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2008

APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, James Palecek 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 hold a Compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. In this regard, the Registrar issued a Notice of Compliance Hearing, which provided that the instant compliance hearing shall be conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the parties’ settlement agreement. If it is determined that Respondent has failed to fully comply with the terms of the settlement agreement, Respondent’s Class C-42 license no. 202520 may be subject to the immediate imposition of discipline.”

2. Based on the foregoing, the parties were advised at the outset of the scheduled Compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

3. The prior Decision and Order resulted in the following settlement agreement: a. The parties stipulate and agree that Items 1[1] and 5 of the Corrective Work Order issued April 12, 2006 have been resolved. b. Respondent will perform and/or cause to be performed through duly licensed contractors, as necessary, all required work on the Items 2 (guest house roof leak), 3 (powder room rook [sic] leak), (patio ceiling tongue and groove ruined by misplaced nails) and (flashing and counter flashing missing at front entry way roof elevations) of the April 12, 2006 Corrective Work Order. c. All corrective work referred to in subparagraph (b) above shall be completed on or before October 31, 2007. The parties acknowledged that Complainant will be out of town October 14 through 21, 2007 during which period no corrective work shall be performed unless otherwise agreed to in writing by the parties. d. Respondent agrees and warrants that it will perform all corrective work in good faith and in conformance with the minimum workmanship standards as adopted in Arizona. e. Subject to the terms of subparagraph (c) hereof, Complainant shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required corrective work. f. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any inspection of the premises, corrective work to be performed and/or any problems regarding compliance with their respective obligations under this settlement agreement including, without limitation, those pertaining to scheduling, materials, etc. g. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email.

4. In the event Respondent satisfactorily completes the work set forth in this settlement agreement, Complainant agrees to withdraw his underlying disciplinary complaint and consents to the entry of an Order by the Registrar closing the issued Citation with prejudice as Resolved/Settled/Withdrawn.

4. At the outset of the scheduled hearing, Respondent averred that the terms of the settlement agreement were somewhat ambiguous. Respondent was advised that the underlying record showed that the parties’ decision to settle the matter was not only a voluntary act, but also one wherein they both understood the agreement.

5. The assigned inspector for the Registrar of Contractors appeared at the instant hearing and testified regarding his findings at a compliance inspection. The salient portions of his testimony included the following:

a. He could not find any evidence of a leak at the guest house. b. Although he had no information upon which to base a decision regarding whether or not there remained any roof water leakage in the powder room area of the home, he did observe what appeared to be a paint repair of a prior water leak and said repair was highly visible. In addition, it failed to properly match the rest of the paint on the wall. c. He did observe some tar that had been installed on the roof over the powder room and it was beginning to separate. He indicated this tar material needed to be repaired. d. A water test was performed on the roof over the laundry room and water leaked into the attic. He felt the leak was coming from a plumbing penetration. Notwithstanding the evidence of water penetration, he did not observe any water damage on the interior of the home in this area. e. There was no issue regarding the patio ceiling and missing or loose roof tiles. f. He found the caulk work around the front entry piers to be acceptable to deal with the flashing issue, however, there were minor voids in the caulk that needed to be corrected. g. The flashing and counter flashing required in the front entry was not complete, possibly due to the fact that the stonework in said area had not been replaced.

6. Joe Brinkerhoff, Respondent’s qualifying party, appeared at the hearing and presented testimony. The salient portions of his testimony included the following:

a. He did not see any leak in the area of the powder room and saw no water stain. b. Respondent had fixed the prior leak over the laundry room and heard nothing from Complainant for one year about any further leaking. Thus, he assumed this area was adequately repaired. c. He did not agree to perform the necessary stone work, but merely to reimburse Complainant for the reinstallation of the stone material by another contractor retained by Complainant[2]. He emphasized that Respondent is not a stone contractor and moreover, Respondent did not remove the stone in question. d. Respondent believed that the pile of stone on the jobsite could be used to repair the home. Later it turned out that it could not. Respondent purchased a new pallet of the special order stone and believed that a stone contractor had been retained to make the repairs. Later Respondent learned that this stone contractor refused to do the work. e. The issues with the stone, including the fact that it was a special order item and the existing stone on site could not be reused, admittedly caused significant delays in Respondent getting the remedial conditions resolved. When Respondent requested additional time to find a new stone contractor, Complainant said it was too late because the deadline date (October 31, 2007) had long since passed. f. According to Brinkerhoff, when the stone contractor installs the stone, said contractor will also install the necessary counter flashing. g. He did not see any evidence of substandard workmanship on the roof.

7. Henry Freeman (“Freeman”), Respondent’s employee appeared at the hearing and presented testimony. According to Freeman, he assumed that the stone on site would be used to redo the stone that was missing from the façade on the house. He felt two (2) days for this aspect of the project was more than adequate. When it turned out that the stone on the site could not be used, it caused the deadline to be missed.

8. The testimony from Freeman, regarding his attempts to replace the stone, supports a finding that Respondent made a diligent effort to obtain the stone and have the stonework replaced.

9. Eduardo Rascon (“Rascon”), another employee of Respondent, also appeared and presented testimony at the hearing. His testimony also was found to support a finding of a diligent attempt by Respondent to comply with the settlement agreement. Among other things, he testified that in his opinion the current leak in the laundry room is a new pipe penetration leak and not the same one that had been corrected after the first hearing.

10. The salient portions of Complainant’s testimony at the hearing included the following:

a. He does not believe Respondent’s remedial work on the roof is within appropriate standards for good and proper workmanship. However, he failed to present any testimony from any other roofing contractor regarding the current state of the roof. b. Paint repair in the powder room is unacceptable and was completed by Respondent’s painter. c. Laundry room still leaks. d. Flashing over the entryway is incomplete and he feels there are aspects that are indicative of substandard and unacceptable workmanship.

11. Based on the foregoing findings, it is determined and held that Respondent failed to fully comply with the terms and conditions of the previously entered Decision and Order in this matter, as manifested by the substandard paint repair in the powder room, the fact that there is still a leak in the laundry room, the splitting of the roofing tar on the roof over the area of the powder room, the voids in the caulking on the front entryway pillars, the failure to complete the installation of all flashing and counter flashing on the front entryway area of the home, and the failure to cause a licensed contractor to reinstall the stonework.

12. Although total compliance by Respondent was not achieved, the record presented herein supports a finding that Respondent made a diligent and reasonable effort to comply, thereby justifying one final opportunity to accomplish compliance. However, Respondent is hereby placed on notice that it will have one, and only one, final opportunity to correct the above described issues.

13. Based on the foregoing and in accordance with the Notice of Hearing issued in this matter, a disciplinary sanction against Respondent’s license, in order to assure compliance with the instant Order, is found to be appropriate.

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 any prior final disciplinary orders against Respondent and said notice revealed the absence of any other open complaints or other matters, besides the instant Complaint, which resulted in any disciplinary sanctions against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be good 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 comply with the terms and conditions set forth in the original Decision and Order issued in this matter. Nevertheless, the facts presented herein militate for the conclusion that Respondent should have one final opportunity to achieve compliance with the Decision and Order.

2. In view of Respondent’s failure to accomplish total compliance with the prior settlement agreement and in accordance with the September 26, 2008 Notice of Compliance Hearing, it is determined that a disciplinary sanction should be imposed against Respondent’s Class C-42 license.

3. In light of the fact that Respondent’s Class C-42 license does not allow it to subcontract for stonework, a minor alteration (clarification) of the settlement shall be imposed regarding the issue of having the stonework completed by a properly licensed contractor.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, commencing on thirty days after the Order on Compliance hearing, entered in this matter becomes final, that the Class C-42 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 inadequate paint repair in the powder room, the leak in the laundry room, the splitting of the roofing tar on the roof over the area of the powder room, the voids in the caulking on the front entryway pillars, insures that all flashing and counter flashing is properly installed in the entryway and pays Complainant for the reasonable cost for the reinstallation of the missing stonework at the front entry area of the home. It is further recommended that if Respondent fully complies with the above-described conditions on or before the aforementioned extended deadline date, then the aforementioned license suspension shall not take place; provided however, by way of a condition precedent for any obligation of Respondent to pay for the reinstallation of the stonework, Complainant shall first provide Respondent with three (3) bids from licensed contractors to correct the missing stone on the home, no later than five (5) days after the Order entered in this matter becomes final. Respondent shall then be responsible to pay Complainant the lowest of the three bids, on or before the above-described extended deadline date. Any failure by Complainant to provide these bids in writing to Respondent by the deadline set forth herein shall be deemed to relieve Respondent of any responsibility to pay for the stonework repair only (all other remedial work must still be completed on or before the extended deadline date set forth herein). 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, November 14, 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] It must be noted that, at the hearing, Complainant acknowledged that Respondent had undertaken good faith efforts to remedy Corrective Work Order item 1 and, to his best knowledge, it had been corrected. However, the parties also acknowledged that, due to the lack of significant precipitation in the Phoenix area, it could not be conclusively determined that the exact cause of the leak(s) could be identified. [2] Although Complainant was to pay for the contractor, Respondent agreed to select the contractor and send said contractor to the jobsite to place a bid for Complainant to accept.

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

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