ALJDEC decisions subject to certification as final

06F-F0227-ROC · Registrar of Contractors · 2007-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2007 APPEARANCES: Kim Lilly, on her own behalf; Lee Price, on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

FACTUAL FINDINGS AND CONCLUSIONS OF LAW

Findings of Fact: 1. On September 26, 2005, Complainant and Respondent entered into a contract in which Respondent agreed to demolish an existing porch and construct a room addition on a 67-year-old residence owned by Complainant in Williams, Arizona. 2. The original contract called for Respondent to dig and pour footings for a 16’ x 22’ addition, frame and enclose the addition, finish the interior walls, and install electrical outlets and lights. The contract also included construction of a 16’ x 12’ open porch on the front of the house. 2. Work on the project commenced shortly after the contract was signed. Early in the project, a building inspector from Williams went to the jobsite and informed both Complainant and Respondent that there was no need for a permit for the type of work being done under the contract. Consequently, most of the stages of the project were completed without the benefit of regular building inspections. 3. Shortly after the work was begun, problems were encountered with the electrical system in the original house. 4. A licensed electrical contractor, recommended by Respondent, was hired to upgrade the wiring and outlets in the original house. Although the electrical problems encountered during construction were not mentioned in the contract, Complainant assumed that the electrical contractor was working for Respondent because the checks she wrote for that work were written to Respondent. Respondent maintained that the electrical work in the original residence was the sole responsibility of the electrical contractor. 5. At some point, near the end of the project, Complainant became dissatisfied with the overall quality of Respondent’s work. 6. On June 27, 2006, Complainant filed a Complaint with the Registrar of Contractors (ROC), in which she listed several examples of what she considered to be substandard work. 7. On July 25, 2006, following an inspection at which Complainant and Respondent were both present, ROC Inspector Mark Schweiger issued a Corrective Work Order(CWO) detailing several items which required correction by Respondent. Those items and Respondent’s explanation at the hearing are as follows: a. Exterior Siding and Trim By agreement of the parties, fiberboard siding was substituted for the vinyl siding specified in the contract. After installation, the siding exhibited broken trim, chipped corners, unfilled holes, excessive gapping and the apparent lack of a bottom starter row. Respondent admitted most of the items observed by the Inspector, but indicated that the switch to fiberboard from vinyl required much more caulking and finish work. He acknowledged that the job was not complete. He insisted, however, that he had installed a bottom starter row, but that it had been hidden under the finish siding.

b. Electrical Work The electrical work inside the original residence was incomplete. In particular, the work was lacking final trim termination and proper mounting of back boxes. The Inspector did not observe any electrical problems relating to the addition. Respondent acknowledged that there were a few remaining problems with the electrical work done in the original residence, but, other than finding the contractor and offering him some minor assistance, he was not responsible for electrical work unrelated to the addition. c. Kitchen/Back Porch/Old Living Room Drywall repairs, apparently occasioned by the electrical work done inside the residence, were incomplete. French doors leading from the addition to the original residence had inconsistent margins between the doors and the jambs, and there was paint on the door hinges. Respondent acknowledged that there were some minor drywall repairs that he had started, but that he had not had the opportunity to complete them. As to the French doors, he stated that the French doors were a pre-hung unit purchased by Complainant, and denied that the installation did not meet industry standards. During the hearing, the Inspector did acknowledge that the margins for pre-hung doors generally were not very consistent. Respondent admitted that there was paint on the hinges that needed correction. d. Front Door The front door frame for the addition was not firmly anchored to the floor. Respondent admitted that the door needed to be properly anchored. e. Ceiling Beam A ceiling beam in the addition was unfinished. It had visible lumber marks and a few damaged areas. Respondent acknowledged that the beam had not been finished, but claimed that Complainant changed her mind regarding the final finish, insisting on stain and varnish rather than paint as originally agreed. Respondent refused to substitute a different finish for paint and had left the beam unfinished at the Complainant’s request. f. New Porch Flagstone paving was incomplete, the roof support post bases were oversized and the border curb appeared cracked. Respondent admitted that those problems needed to be corrected. Although the Inspector testified that the span between the porch roof frame members and supports was too long, that problem was not addressed in the CWO. The Inspector acknowledged that the City’s failure to require a building permit precluded the normal inspections that would have revealed a problem with the structure of the roof frame. 8. The Complainant testified that the subfloor installed in the addition was not level. The Inspector, however, testified that he considered the subfloor to be within industry specifications and it was not included in his CWO. 9. At the time of the hearing, Respondent’s license was on inactive status. He testified, however, that he had researched the process of reactivating his license in order to complete the items listed in the CWO, and determined that his license could be readily reactivated.

Conclusions of Law: The Citation alleged violations of A.R.S. §32-1154A (1), (2), (17), (23) and (3), namely R4-9-108. There was no evidence to support a finding that Respondent violated A.R.S. §32-1154A (1), (2), (7), or (17). Violations of A.R.S. §32-1154 (23) and (3), namely R4-9-108 were admitted by Respondent with respect to the work remaining to be done on the exterior siding, the removal of paint on the French door hinges, the kitchen drywall repair, anchoring the front door frame, painting the ceiling beam, replacing the bases for the porch roof post supports, repairing the concrete border curb and completing the flagstone paving work. There was not sufficient evidence to establish that Respondent was responsible for the unfinished electrical work inside the original residence, or that the French doors were not installed in accordance with industry standards for a pre-hung door.

RECOMMENDED ORDER

Commencing the effective date of the Order in this case,[1] it is recommended that Respondent reactivate his KB-02 license, and that such license be suspended until Respondent has completed appropriate corrective work with respect to (1) repairing the exterior siding, (2) removing the paint from the French door hinges, (3) repairing the kitchen drywall, (4) anchoring the front door frame, (5) painting the ceiling beam, (6) replacing the bases under the porch roof support posts, (7) repairing the concrete border curb, and (8) completing the flagstone paving work. If the corrective work is completed prior to the effective date of the Order, no suspension should take place and this matter should be closed. It is further recommended that Complainant give reasonable access to Respondent during normal business hours, or such other times as agreed by the parties, in order to perform the necessary corrective work.

Done this day, April 30, 2007.

______________________________________ Michael K. Carroll 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 ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification.

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