ALJDEC decisions subject to certification as final

06F-2013-ROC · Registrar of Contractors · 2006-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2006. APPEARANCES: Ira Cahn and Florine Cahn appeared personally. Crespin Construction, L.L.C. was represented by its attorney, Ernest Shaver, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Crespin Construction, L.L.C. (“Respondent”) is the holder of License No. 251580, a Class KB-02 contracting license issued by the Registrar of Contractors. 2. Ira Cahn and Florine Cahn (“Complainants”) hired Respondent to remodel their home in Scottsdale, Arizona. Respondent was to remodel Complainants’ master bedroom and construct an additional room. 3. Complainant Ira Cahn, a retired HVAC worker, took an active role supervising Respondent’s work and subcontracting other trades for work outside the scope of Respondent’s contract, such as concrete work. 4. In March 2006, Complainants filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 5. In response to Complainants’ filed complaint, the Registrar of Contractors’ assigned agency inspector, Scott Deering, performed a jobsite inspection at Complainants’ residence to view and/or address the 15 complaint items. 6. As a result of his inspection, Inspector Deering issued a Corrective Work Order dated May 19, 2006, setting forth his findings as to the following 15 complaint items:

Complaint #1: Paid $1,000.00 for carpet, I had to pay carpet contractor this again to get carpet. Contractor to refund complainant $1,000.00 carpet deposit for carpet not received.

Complaint #2:

Seams in bedroom drywall are visible on east wall and ceiling, also master bathroom drywall was not properly prepared before texturing. Contractor to correct drywall to uniform texture in master bedroom. At the time of the jobsite inspection, the seams in the master bedroom appeared to be within standards. No action required by the contractors.

Complaint #3:

Ceiling fan in master bedroom turns when air conditioning is on. Register is too close too (sic) fan. No action required by the contractor.

Complaint #4:

Recessed light in master bedroom missing trim. Contractor to correct by appropriate means.

Complaint #5:

Master bedroom – recessed light trim doesn’t cover hole. Contractor to correct by appropriate means.

Complaint #6:

Hot water plumbed to toilet. This has been corrected prior to jobsite inspection. No action required by the contractor.

Complaint #7:

Vanity cabinets (sic) backs were cut out for plumbing access. Contractor to correct cabinet backs by appropriate means.

Complaint #8:

Base not complete. Contractor to correct by appropriate means.

Complaint #9:

Shower ponding, not draining. Contractor to correct master bathroom shower floor to drain properly per code.

Complaint #10:

Master bath access to tub motor missing cover. Contractor to correct by appropriate means.

Complaint #11:

GFCI receptacle missing cover in master bathroom. Contractor to correct by appropriate means.

Complaint #12:

Clean out cover missing on plumbing cleanout in recreation room. Contractor to correct by appropriate means.

Complaint #13:

Sliding glass door installation is not complete. Contractor to correct by appropriate means.

Complaint #14:

Attic ventilation is not correct. Contractor to correct by appropriate means per city approved plans.

Complaint #15:

Sliding glass door stoop has rough finish. No action required by the contractor.

7. The Corrective Work Order directed Respondent to perform the required corrective work within 15 days of May 19, 2006. There is evidence that Respondent did perform some of the corrective work items within the 15- day period. 8. After the expiration of the 15 days for Respondent to comply with the Corrective Work Order, Complainants denied Respondent access to their property to complete the required remedial repairs. 9. On December 1, 2006, Inspector Deering performed a prehearing jobsite inspection to view Respondent’s compliance with the Corrective Work Order. Inspector Deering testified to his prehearing jobsite inspection results:

Complaint #1: Respondent did not refund the $1,000.00 carpet deposit to Complainant.

Complaint #2:

The drywall repair was not done.

Complaint #3:

No action was required by the contractor.

Complaint #4:

Respondent had corrected by appropriate means.

Complaint #5:

Respondent had corrected by appropriate means.

Complaint #6:

Respondent had corrected prior to the first jobsite inspection and was not required to perform any remedial repairs.

Complaint #7:

Not completed.

Complaint #8:

Not completed.

Complaint #9:

Not completed as to ponding issues.

Complaint #10:

Respondent corrected by appropriate means. Respondent used a piece of matching tile as a door for the motor.

Complaint #11:

Respondent corrected by appropriate means.

Complaint #12:

Respondent installed the missing clean out cover in the recreation room, but it failed to paint it.

Complaint #13:

Not completed.

Complaint #14:

Not completed.

Complaint #15:

No action had been required by Respondent.

10. Respondent is found to have performed some of the required remedial repairs required by with the Corrective Work Order, albeit not completely. Although the Corrective Work Order directed Respondent to comply with the written directive within 15 days of May 19, 2006, the applicable statute actually requires a contactor to take appropriate corrective action “… within a reasonable period of time after receiving a written directive from the Registrar.” Complainants denied Respondent access to their property after the 15 days from May 19, 2006 had expired. Inspector Deering credibly testified that the remaining corrective work items were minor in nature. Therefore, Complainants’ denial of access to Respondent constitutes valid justification for Respondent’s failure to fully comply with the written directive within a reasonable period of time. 11. Although there is evidence that Respondent properly listed its contracting license on its correspondence and documents for this project, including using the prefix “ROC,” there is evidence of record that it failed to list its license number on other documents submitted to Complainants. 12. Complainant obtained a required building permit from the City of Phoenix on August 30, 2005. There is no evidence that Respondent deviated from code requirements or plans and specifications on this project. 13. Respondent’s deficient workmanship is found to be a wrongful act that substantially injured Complainants. 14. Any allegations made by Complainants that are not specifically addressed in the above Findings are found to lack sufficient evidence of record to support a finding of a statutory or regulatory violation by Respondent. 15. A review of the official records maintained by the Registrar of Contractors reveals that Respondent’s Class KB-02 contracting license has five open complaints against it, and one Resolved/Settled/Withdrawn complaint since the issuance of its license on January 24, 2006.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record did not demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record was inadequate to support a conclusion that A.R.S. § 32-1154(A)(20) is applicable in this matter. 6. The evidence of record did not demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. Complainants’ denial of access provides the basis for Respondent’s valid justification from fully complying with the Corrective Work Order within a reasonable period of time. 7. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R2-19-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 8. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32- 1124(B), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 215580 shall be suspended on the effective date of the Order entered in this matter until the Registrar of Contractors receives written proof that the Registrar of Contractors’ Corrective Work Order dated May 19, 2006, has been fully rectified by Respondent.[1] If Respondent properly accomplishes the remaining corrective work required by the Corrective Work Order on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place, but instead Respondent’s license shall be placed on probation for 120 days, commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order entered in this matter is filed with the Registrar of Contractors, whichever is later. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $5,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided 24-month period and only if no claims are then pending. 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 will be 40 days from the date of that certification.

Done this day, December 29, 2006

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Neither the Registrar of Contractors nor the Office of Administrative Hearings can force Complainants to provide Respondent with access to their property necessary to complete the require repairs. However, the denial of reasonable access to Respondent may result in Respondent being excused from the condition to make the necessary repairs in order to avoid suspension of its license.

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