ALJDEC decisions subject to certification as final

06F-2148-ROC · Registrar of Contractors · 2007-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2007 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its managing member, Bob Kapci (“Kapci”). 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. Pursuant to contract, Complainants purchased new home construction from Respondent. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Evidence of record showed that Complainants failed to specifically enumerate all of the items of their Complaint, on the form they initially filed with the Registrar of Contractors. Although they attached to the filed Complaint they included a copy of the applicable contract, along with checks and a report from an independent building inspector, the assigned Agency inspector testified that when he arrived for his jobsite inspection, he was unclear what were the exact items of the filed Complaint. According to the testimony of the Registrar of Contractors’ inspector, he and Respondent were advised of the issues of the Complaint at the time of the jobsite inspection and it was agreed between all the parties that the inspection would cover twenty-one (21) items, which the Registrar of Contractors’ inspector addressed in the Corrective Work Order (“CWO”), that he issued subsequent to completing the jobsite inspection.

3. During the course of the hearing, Complainants attempted to raise certain issues which were not made a part of the original jobsite inspection, stating that they were addressed by their private building inspector, in his report. These items included an allegation of a roof leak and the operation status of the pool cleaning system. It was determined and held that since these items were not specifically enumerated in the filed Complaint and not presented at the time of the above-described jobsite inspection, Respondent did not have adequate notice that these items were part of the Complaint and thus, based on basic due process considerations, these issues were disallowed from consideration at the instant hearing. Nevertheless, the parties were further advised that nothing in this ruling should serve to prevent Complainants from filing another Complaint which would address these issues.

4. The assigned Registrar of Contractors’ inspector testified to the following:

a. He observed loose roof tiles at the original inspection and ordered Respondent to correct this issue. He performed a pre-hearing inspection and at that time determined that the issue had been addressed by Respondent. b. At the original jobsite inspection, there was an issue of the incomplete status of the exterior painting of the home. Based on his findings at said jobsite inspection, the CWO issued by the inspector, required Respondent to complete the painting of the exterior of the home. Although Respondent completed the painting of the exterior of the home, at the pre-hearing inspection the inspector observed what he believed were shade variations in the paint on the walls of the home. c. On the issue of the pool pump and filter not being bolted to the concrete slab upon which they were placed, the inspector determined that there was no requirement for bolting these items to the slab and indicated in the issued CWO that Respondent was not required to take any action in this regard. d. At the original jobsite inspection the inspector determined that the driveway was not excessively steep and that it conformed to the grade provided on the applicable plan for the driveway. He did not require any action for Respondent regarding the grade of the driveway. Although Complainants are now contending that there is some degree of cracking in the pavers used to construct the driveway, the inspector did not observe any cracks in the pavers. e. The inspector did not find any deficiencies in the sub-grade for the rear yard, since same passed the local building authority inspection process. He indicated that he did not look for any cracks in the decking, due to the fact that cracks in the deck were not part of the original Complaint items brought to his attention at the original jobsite inspection. However, he further testified that if there is currently cracking in the deck, the adequacy of the sub-grade could be a factor. f. He observed that there was a variation in the shutters installed on the exterior of the home. Some had screw holes and others did not. He also observed some scratches on a number of the shutters and a variance in color or shade of color.

5. Complainants called their private home inspector, Daren Cloyd (“Cloyd”) as a witness at the hearing. Cloyd’s testimony included the following:

a. He is a certified home inspector, with fourteen (14) years construction experience. b. He performed at least two (2) inspections on the home. On his recent site visit, he observed that the grade in the rear yard is worse. He believes that the erosion of the grade is undermining the integrity of the rear patio slabs. In some areas, he found erosion of up to ½ inch of the supporting soil under the slab. c. He does not believe that the final grade was properly brought up to the edge of the concrete slabs in the rear yard. d. He never advised Complainants that the grade of the driveway was too steep. However, he contends that the slope of the dirt next to the driveway is too steep and will create a run-off problem. He also stated, that on his most recent visit he found some of the border bricks for the driveway settled away from the main driveway pavers. e. He found numerous roof tiles still loose. He indicated that approximately 15% of the “boost” tiles were still not adequately attached to the roof and could create a significant hazard if they fell off the roof and fell onto a person on the ground level of the home. f. He saw shade variation in the final exterior paint work. g. On the issue of the shutters, he found a lack of consistency in the screw application.

6. Kapci testified at the hearing and the salient portions of his testimony included the following:

a. He contends that the house was painted by one painter, at one time, with one paint color. It is his opinion that the shade variation described by the Registrar of Contractors’ and Complainants’ inspectors was merely light variation, due to the fact that they indicated it was different walls that showed the variation. b. On the issue of the rear yard erosion and cracking of the slab, he contends that any failure in the grade for that portion of the home, is due to the fact that Complainants failed to landscape the rear yard. There is a pool in the yard and thus, all water is running off the decks, away from the direction of the pool. Without any gravel or grass in the rear yard, he believes that the water run-off would cause the erosion that has been described at the hearing. c. Regarding the problem on the front driveway support pavers moving away from the main driveway, he did not have any comment because he had not seen the situation. d. He admitted that the most recent shutter installation included the placement of colored screws to match the shutters, while the original shutters had the screw holes caulked over and then painted. During closing argument, he indicated that he would not have a problem correcting this issue.

7. Based on the foregoing, it is determined and held that the weight of the credible evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. All loose tiles on the roof need to be corrected and work needs to be performed to assure that all “boost” tiles are firmly and effectively installed to the other roof tiles. b. There are shade variations in the exterior painting of the walls of the home. c. The support pavers on the side of the driveway are breaking away from the field pavers on the driveway. d. There are scratches on a number of shutters, there is shade variation on the color of the shutters, and the installation of the screws on the shutters is inconsistent.

8. The items set forth in Finding of Fact no. 7 are not only found to be workmanship violations but they also constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

9. Although Respondent made a concerted effort to comply with all of the terms and conditions of the CWO issued in this matter, it failed to accomplish total compliance. Nevertheless, under the facts and circumstances presented herein, no civil penalty would be warranted.

10. Complainants failed to sustain the requisite burden of proof necessary to establish that Respondent is responsible for the erosion problem and resultant slab cracking in the rear yard, since they failed to install appropriate landscaping in said area of the home. They also failed to establish the existence of any deficiency in the manner in which the pool pump and filter are installed.

11. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, 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 that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. 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 case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

2. There was no adequate evidence presented to support a finding that Respondent violated the provisions of A.R.S. §32-1154A (1).

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 7(a) through 2(d), above. It is further recommended that if Respondent accomplishes the above- described corrective work 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 (no. 06-2148), 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, February 5, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

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