ALJDEC decisions subject to certification as final

06F-2035-ROC · Registrar of Contractors · 2007-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2006 and March 6, 2007. APPEARANCES: Susana Romo appeared personally. At the December 7, 2006 hearing, Landon and Daniel’s Construction Corp. was represented by its attorney, William Black, Esq. At the hearing on March 6, 2007, it was represented by its president and qualifying party, Orlando Mora. 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. Landon and Daniel’s Construction Corp. (“Respondent”) is the holder of License No. 195921, a Class K-61 contracting license issued by the Registrar of Contractors. 2. On or about February 5, 2006, Susana Romo (“Complainant”) accepted Respondent’s written proposal for performing work at her residence. The written proposal provided for the following scope of work:

a. Restructure roof line at laundry to be at same level as garage and enclose laundry to access through house. b. Remove existing concrete and pour new with stem wall at new entry house, new concrete, and laundry floor all to be same level. Also form and pour concrete curb at east laundry wall to correct water problems c. Relocate gas, water, vents and waterlines all to accomidate [sic] relocation of water heater and laundry machines. d. Relocate existing laundry entry door to accomidate [sic] new closet. e. Relocate existing house door to new entryway. f. Create a new closet at laundry room also add fix glass for light at east wall. g. Change existing electrical panel to 200 amp panel. h. Finish and paint all affected wall areas one color

Note: customer to supply any cabinets sink and faucets. ceramic tile for laundry floor and new entryway touchup paint for any affected areas at dining room touchup paint for exterior siding

estimated time of completion will be thirty or forty working days

laundry facilities will always be available on weekends on through course of job.

3. The proposal set forth the contract price of $24,500.00, which was to be paid by Complainant as follows: $4,500.00 at start date; $5,000.00 at end of the first week; $5,000.00 at the end of the second week; $5,000.00 at the end of the third week; $2,500.00 at the end of the fourth week; and, $2,500.00 at full completion of the work. 4. On February 21, 2006, Respondent started working on Complainant’s project. 5. By letter dated March 24, 2006, Respondent’s president and qualifying party, Orlando Mora, confirmed to Complainant their March 23, 2006 meeting and outlined Respondent’s concerns expressed to Complainant. Respondent also advised Complainant that she had an outstanding balance of $3,315.00 and $875.00 for extras beyond the scope of their original contract. Mr. Mora stated that once Respondent was paid the $3,315.00, then it would authorize the electrician to install the new electrical panel. 6. By letter dated March 27, 2006, Mr. Mora informed Complainant that he had arrived at her residence earlier that day to complete four items. He was unable to gain access to her residence since the garage door code had been changed. Mr. Mora enclosed Complainant’s kitchen door keys and requested that she notify him as how the parties should proceed. 7. On or about March 28, 2006, Complainant filed a written complaint with the Registrar of Contractors alleging multiple statutory and regulatory violations by Respondent. 8. By letter dated April 11, 2006, Complainant wrote to Inspector Duncan, among other things, the following:

I feel that this man has intimidated and manipulated me in various situations. As a single woman living alone, I feel unsafe having this man work at my house. As a working individual, I feel uncomfortable giving him access to my home while no one is here. I’m also apprehensive about allowing someone to continue to do patch up work, sloppy work and incorrect work on a job that I have paid $22,000. I had a licensed roofer look at the new addition and he stated that the roof was done incorrectly. I have been told by a handyman that the electrical work done thus far is sloppy and suggested I get someone else to do the panel.

I’m so upset and unsure of my rights. Is it absolutely necessary that I allow this man I fear into my house to continue to work before the designated inspection date?

9. On April 12, 2006, Complainant was informed by Registrar of Contractors staff that she could deny Respondent permission to perform work prior to the jobsite inspection. 10. As a result of the filed complaint, the Registrar of Contractors’ assigned inspector, Warren Duncan, performed a jobsite inspection to view the alleged deficiencies. That inspection resulted in the issuance of a Corrective Work Order dated April 27, 2006, which required Respondent to timely perform remedial repairs to the following complaint items:

Complaint No. 1: Roof deficiencies: 1 X 6 facia [sic] board not done in a workmanlike manner – joints not aligned properly; drip edge cap metal installed with nails exposed.; cap sheet loose and exposed nails along edge where new meets existing; roof jack not installed properly, nails exposed; tie-in at slope roof not properly flashed; and, insufficient lap up slope roof tie-in.

Complaint No. 3: Brick not removed in foyer area. No plans or specifications. [Inspector Duncan opined that “homeowner could reasonably expect brick to be removed or concealed into finish wall.”]

Complaint No. 5: No shelves installed in laundry closet. No plans or specifications. [Inspector Duncan opined that “homeowner could reasonably expect a system of shelving in closet.”]

Complaint No. 7: Homeowner charged extra to build platform for laundry sink, has decided not to have platform built. [Inspector Duncan directed Respondent to give Complainant a credit.]

Complaint No. 9: Old bell box not relocated and credit not given to homeowner.

Complaint No. 10: New electrical panel not installed.

Complaint No. 11: Water heater not installed per code. Regarding height above garage floor, piping of T&P valve, protection/proper securing of gas connection.

Complaint No. 12: Dryer hose not connected to damper assembly.

Complaint No. 13: Exterior rear door does not catch properly.

Complaint No. 14: Door to garage not self closing.

Complaint No. 15: Closet door hinge bound and uneven margins.

Complaint No. 16: Laundry partition wall not plumb, out 3/8” in 4’.

Complaint No. 17: Project not completed.

Complaint No. 18: Horizontal seams in laundry drywall readily visible, approximately 8” – 10” above floor.

Complaint No. 23: Curb poured next to exterior siding, gap between siding and curb.

Complaint No. 24: Water flooding remains, floor level at foyer approximately 2” above grade.

Complaint No. 27: Contractor installed piece of floor tile with readily noticible [sic] defect.

Complaint No. 28: Contractor didn’t remove concrete as per contract.

Complaint No. 29: Nail pop at dining room ceiling near doorway.

Complaint No. 30: Doorway not in finished condition, between dining and foyer.

Complaint No. 31: Garage east wall not painted following patch work due to plumbing work.

Complaint No. 32: Homeowner supplied all paint. [Inspector Duncan required Respondent to give Complainant a credit for the paint.]

Complaint No. 33: No permit. Respondent was required to obtain a city permit and comply with any directives.

11. Inspector Duncan opined that no action was required of Respondent for the following complaint items:

Complaint No. 2: Condensate line inside wall and embedded in concrete stoop. No plans to indicate location, acceptable per Registrar of Contractors standards.

Complaint No. 4: East wall not brick veneered per verbal discussion.

Complaint No. 6: Contractor charged extra for outlet on east wall of laundry. Code required outlet at west wall. Inspector Duncan noted that Complainant had signed a change order for this outlet.

Complaint No. 8: Homeowner feels switch for exterior flood lights should not have been an extra. [Inspector Duncan noted that there were no plans or specifications, and that Complainant had signed a change order.]

Complaint No. 19: Bows in laundry room walls.

Complaint No. 20: Lights in laundry ceiling not positioned properly.

Complaint No. 21: Window in laundry room smaller than desired.

Complaint No. 22: Contractor didn’t remove water damaged existing wall framing.

Complaint No. 25: Water damaged siding on north wall not replaced.

Complaint No. 26: Foyer ceiling slopes.

12. On or about May 3, 2006, Respondent obtained the required building permit from the City of Phoenix. 13. On May 5, 2006, a City of Phoenix inspector viewed Respondent’s workmanship and issued a written notice addressing 17 items. 14. On May 5, 2006, Mr. Mora met with Complainant to review the permit and Corrective Work Order. 15. By letter dated May 8, 2006, Mr. Mora informed Inspector Duncan that he had received the Corrective Work Order on March 28, 2006 and had contacted Complainant. Mr. Mora described his company’s difficulty in obtaining access from Complainant necessary to schedule subcontractors to perform remedial repairs. 16. By letter dated May 8, 2006 addressed to Mr. Mora and Inspector Duncan, Complainant requested the following items from Respondent:

1) Proof that you have workman’s compensation. 2) Evidence of status of workers; proof they are your employees or if they are subcontractors I need their names and license numbers. 3) Proof that you have revised the permit as directed by the City Building Department. 4) Proper identification of any individuals you bring to my home.

Complainant also noted that Respondent had not made an appointment with the city inspector to open the walls to show the plumbing and electrical work. 17. By letter dated May 10, 2006, Complainant stated her perspective of the project to Inspector Duncan. 18. By letter dated May 16, 2006, Inspector Duncan advised the parties that Complainant’s complaint against Respondent was being considered for citation. 19. By letter dated May 26, 2006, Respondent’s then counsel, William D. Black, Esq., contacted Complainant about the project. 20. By letter dated June 8, 2006, Complainant advised Inspector Duncan that she was in contact with Respondent’s counsel and requested an administrative hearing in case the parties could not resolve their dispute. 21. By letter dated August 3, 2006, Complainant again requested an administrative hearing. 22. By letter dated August 18, 2006, the adjustor for Respondent’s insurance carrier, Optimum Adjusting, LLC, admitted liability for storm-related roof damage due to Respondent’s workmanship. The adjuster advised Complainant of its estimated damages to her. 23. Inspector Duncan performed a prehearing inspection of Respondent’s workmanship on December 5, 2006. During that inspection Complainant told Inspector Duncan that she did not want Respondent to perform any remedial repairs. 24. At the hearing, Inspector Duncan opined that Respondent could have performed the required remedial repairs if granted access. At the time of his prehearing inspection, Inspector Duncan was unaware of Complainant’s allegation that Mr. Mora physically intimidated her. 25. Inspector Duncan testified that Complaint No. 1, concerning roof deficiencies, was no longer an issue since a new roof had been put on Complainant’s residence with insurance claim funds. 26. Inspector Duncan testified that Complaint Nos. 3 and 5, described in Finding No. 10 above, would not be a major undertaking to correct. 27. Inspector Duncan testified that Complainant should be given a credit for the laundry sink platform, and that this issue was minor in nature. 28. Inspector Duncan testified that the relocation of the old bell box and credit to Complainant was minor in nature. 29. Complaint No. 11, the water heater issue, had been corrected by others prior to the jobsite inspection. 30. The written directive to connect the dryer hose to the damper assembly required additional routing by the city, but Inspector Duncan felt it was minor in nature. 31. Complaint Nos. 13, 14 and 15, described in Finding No. 10 above, are adjustment issues that are minor in nature. 32. Complaint No. 16, that the laundry partition wall not plumb, is a more serious issue that will involve some destruction and rebuilding to properly repair. 33. Complaint No. 24, described in Finding No. 10 above, requires either a drainage system or change in grade to properly repair. Inspector Duncan opined that this would be a medium sized project. 34. Respondent is found to have a bona fide dispute with Complainant. Respondent did not abandon the project. 35. The issue of rotten wood replacement in the laundry room and the garage is found to be outside the scope of the parties’ written agreement. 36. Respondent was contractually obligated to paint the interior of Complainant’s residence in one color, which it did. Complainant decided that she wanted additional paint colors used in the interior. Respondent is not responsible for the additional paint colors. 37. Respondent violated local building code with the installation of the hot water heater. 38. Respondent is found to have been denied reasonable access to perform remedial repairs. 39. Respondent’s violation of local building code and its deficient workmanship are wrongful acts that have substantially injured Complainant. 40. Complainant testified that the reasons she feared Mr. Mora were: she was asking many questions of Respondent’s work; Mr. Mora’s reaction to the brick work issue on the east wall; a meeting between Complainant, her neighbor and Mr. Mora, during which Mr. Mora left the meeting; Mr. Mora would not sit down and work out Complainant’s issues; Mr. Mora became rude, but did not use profanity; and, Mr. Mora appeared at a meeting with two unidentified workers. There is no claim that Mr. Mora physically intimidated Complainant. Complainant’s fear of Mr. Mora is not justified by the evidence of record. 41. Any allegation contained in Complainant’s complaint that is not specifically addressed above is found to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation by Respondent. 42. A review of the official records of the Registrar of Contractors reflects that Complainant’s complaint is the only complaint against Respondent’s license.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(1), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. 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. 5. 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. 6. Respondent did not violate the provisions of A.R.S § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 7. Respondent violated the provisions of A.R.S § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 195921 shall be placed on active suspension on the effective date of the Order entered in this matter until the Registrar of Contractor receives written proof that Respondent has fully complied with the Corrective Work Order, with the exception of Complaint No. 1, and any requirements by the City of Phoenix building inspector.[1] In addition to the foregoing indefinite license suspension, if any, Respondent’s Class K-61 shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in this matter or the date on which written notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. 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, March 26, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

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

By ___________________________

----------------------- [1] Any denial of reasonable and timely access by Complainant may result in this condition being excused and no active suspension imposed upon Respondent’s contracting license.

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