ALJDEC decisions subject to certification as final

06F-G1425-ROC · Registrar of Contractors · 2007-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2006

APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president and qualifying party, David Everson (“Everson”). 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. Complainant purchased new home construction from Respondent. Complainant contends that there were numerous deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainant averred that her very lengthy Complaint had been narrowed down to only six (6) remaining issues. The parties were given an opportunity to explore settlement on these issues, and they were able to resolve four (4) of the six (6) issues, since there was no dispute by Respondent regarding the need for appropriate corrective work on these four (4) areas. The four areas in question, involve roof repairs to stop water leakage, mold remediation from the water penetration into the interior of the home, water damage to the front entry door, and ripples in the garage ceiling.

3. Respondent stipulated that there has been a series of roof leaks at Complainant’s home, requiring appropriate and effective roof repairs to terminate the roof leakage. In this regard, Everson indicated that he believes the leakage point had recently been discovered, during a recent attempt at remedial work, and another water test will be performed by a water testing company, in order to assure that the water penetration problem has been corrected. Once verification is accomplished showing that roof water leakage has stopped, Respondent will complete all of the necessary “cosmetic” completion work on the roof.

4. Once the aforementioned roof related work is completed, Everson agreed to cause a mold remediation company to remediate any and all mold that may be in the home and on the front entryway. Any and all water damaged areas of the front entryway door shall be repaired once the mold issue in said area is remediated.

5. Everson agreed to correct the drywall problems in the garage ceiling.

6. Respondent was advised and agreed that all of the necessary remedial work on the roof, the mold remediation inside the home, the mold remediation on the front entryway, the repair of the water damage at the front entryway, and removal of the garage ceiling ripples will be accomplished in a proper workmanlike manner on or before the effective date of the Order entered in this matter. Notwithstanding Respondent’s stipulation to correct the above-described items, it is important to note that these items were deficiencies that Respondent knew about prior to the time of the scheduled hearing and therefore, the remedial work in question should have been accomplished prior to the necessity of convening an administrative hearing on said issues. Thus, Respondent’s actions or prior lack thereof regarding these issues would still constitute a violation of the applicable charged provisions of the State’s Contracting laws regarding good and proper workmanship and wrongful conduct.

7. The remaining issues of the Complaint involved the issue of the master bathroom vanity cabinet, the countertop in said bathroom, and the master bathroom tub. The following salient facts were adduced in regard to these issues:

a. Complainant testified that because of some type of damage that occurred on the master bathroom vanity cabinet (“cabinet”), Respondent installed new sides (skins) to the areas in question. According to Complainant, the work was not done “correctly.” When questioned about what she meant by “correctly,” Complainant merely indicated that the sides are “rough.” In addition, she testified that the floor grout in said area had to be removed to install the new cabinet side panels and it has not been repaired. b. Complainant also indicated that the cabinet countertop is not level and there is a large gap between the countertop and the top of the cabinet, wherein Respondent has installed wood shims, in an attempt to level the countertop. c. In regard to the master bathroom tub, Complainant testified that the tub was “perfect” when she inspected the tub during her final “walk- through” before the closing on her home purchase. However, according to Complainant, when she moved into the home she found the tub pitted. d. Complainant testified that Respondent has been out to her home on three (3) occasions to repair the damage to her bathtub and after the attempts at remedial work, the tub is now very rough to sit on and the non- slip surface is gone from the bottom. Based on these deficiencies in the bathtub, Complainant has never been able to use her new bathtub. e. Christine Geltner (“Geltner”), Complainant’s real estate agent for the purchase of her home, appeared at the hearing and presented testimony. Geltner testified that she also examined the bathtub, during the final “walk-through” and saw that there were no problems with the tub, at that time. Later, she came back to the home, at Complainant’s request, and saw something like rust on the bottom of the tub. Later, the tub bottom became pitted. According to Geltner, the tub is now very unsightly. f. Geltner also confirmed that the non-slip surface has been removed during the course of the remedial measures performed by Respondent. g. Jeff Burns (“Jeff”), Complainant’s son, also appeared at the hearing and presented testimony. Jeff lives in the home with Complainant.

h. Jeff asserts that the countertop is still not level. In regard to the new sides installed on the cabinet, he states that they are not flush with the cabinet. i. According to Jeff, he can fit his hand in the gap between the countertop and the cabinet. He claims that the gap is approximately ½ inch. He also confirmed that the grout was removed when the new cabinet sides were installed and it has not been replaced. j. Jeff also testified in regard to the bathtub. He confirmed the testimony of Complainant and Geltner, that the tub was in fine condition during the “walk-through” but when he and his mother moved into the home, the tub was now pitted. He indicated that Respondent has tried to have the tub fixed but the repair efforts have only made the situation worse. According to Jeff, the non-slip surface is now gone. He also testified that the pitting of the bottom of the tub is so rough that he has scraped his fingers when he has cleaned the tub. k. Jeff testified that due to the unacceptable condition of the bathtub, he has never used same during the entire period that he has lived in the home. l. Respondent called the Registrar of Contractors’ inspector, assigned to this Complaint, as a witness. The inspector testified that he examined the bathtub on several occasions. He issued three (3) Corrective Work Orders (“CWO”) in this matter. In the original CWO, issued on May 16, 2006, he ordered Respondent to correct the pitting in the tub. On the second CWO, issued on July 11, 2006, he did not order any action in regard to the bathtub and on the final CWO, issued on September 8, 2006 he did not order any action. m. The inspector believes that the tub has been corrected, as a result of the several repair efforts accomplished by Respondent. However, he admits that he did not view the bathtub on the pre-hearing inspection. n. Respondent submitted into evidence its exhibits “D” and “E,” which are the work orders from Todd’s Porcelain and Fiberglass, the company that performed remedial work on the bathtub on January 31, 2006 and again on March 6, 2006. Both of these documents show that Complainant signed the documents, under the phrase “certifying work has been satisfactorily performed.” o. The inspector testified that he has put a level on the countertop in question and same was shown to be within allowable tolerances for level of a countertop. At the first jobsite inspection, he did not have the proper tool to check the level of the cabinet itself, but he indicated that same looked to be level just by viewing same with his eyes.. On his third (3rd ) inspection he did have the proper device to check for level on the cabinet and found same to be out of plumb and out of square. Thus, on the third CWO he ordered Respondent to correct the out of plumb condition. There was no showing that Respondent has corrected the out of plumb condition of the cabinet. p. The inspector did not see any problem with the installation of the cabinet sides, other than the need to repair the grout in said area. q. Respondent called Rob Lawrence (“Lawrence”) as a witness. Lawrence is employed by a contractor consulting company and was shown to have extensive construction experience. Lawrence claims that the non-slip surface is still present in the bathtub and by running his hand over the bottom of the tub, he contends that the tub is not course to the touch. r. Lawrence testified that the cabinet does not look to be out of plumb and he disputes the findings of the Registrar of Contractors’ inspector regarding the conclusion that the cabinet is actually out of plumb.

8. It is hard for this Tribunal to believe that Complainant and her son would not use the bathtub, if it were not for the absence of the non- slip surface and the rough finish on the bottom of the tub. It is determined and held that the weight of the credible evidence of record was sufficient to support a finding that the bathtub is still rough to the touch on the bottom and the original non-slip surface finish is no longer present. Therefore, Respondent must accomplish appropriate and effective remedial work to remove any rough areas from the bottom of the bathtub and to restore an appropriate non-slip finish to the bottom of the tub.

9. Evidence of record was inadequate to support any finding of a deficiency in the sides of the master bathroom vanity cabinet or that the top is out of level. However, the weight of the evidence of record was sufficient to support a finding that the cabinet, itself, is out of plumb. In addition, it is found that the floor grout in the area of the cabinet sides needs to be repaired.

10. Complainant has experienced considerable stress and aggravation over the numerous construction deficiencies found in her new home. Although Respondent has been responsive to her complaints, the excessive number of construction deficiencies in the home is found to be a matter in aggravation for any determination of appropriate disciplinary sanctions to be imposed.

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 the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show that three (3) matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation 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 evidence presented to establish any violation of A.R.S. § 32-1154A (2) or (13); namely A.R.S. §32-1124 (B).

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 no. 6, removes any rough surface on the bathtub, assures that there is a non-slip surface on the bathtub bottom, corrects the out of plumb condition of the master bathroom cabinet, and replaces the missing floor grout adjacent to the new sides of the cabinet. 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. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $125.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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, March 19, 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