ALJDEC decisions subject to certification as final

06F-G1425-ROC-com · Registrar of Contractors · 2009-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2009

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. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors to hold a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. In this regard, the Registrar of Contractors issued a Notice of Compliance Hearing, which provided that the instant compliance hearing shall be conducted “in order to determine whether or not Respondent has fully complied with the terms set forth in the April 12, 2007 Order…”

2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

3. The April 12, 2007 Order of the Registrar of Contractors required Respondent to correct the following deficiencies in Complainant’s home:

a. Stop any roof leak; b. Mold remediation on water damage to the interior of the home; c. Correct any water damage to the front entry area of the home; d. Fix the ripples in the garage ceiling; e. Remove the rough surface in the bathtub; f. Assure that there is a non-slip surface on the bathtub bottom; g. Correct the out-of-plumb condition of the master bathroom cabinet; and h. Replace the floor grout adjacent to the new sides of the cabinet.

4. Evidence of record showed that the parties reached a financial settlement agreement on items 3(e) through 3(h). Thus, those issues were shown to be fully resolved.

5. Evidence of record was found to be sufficient to support a finding that Respondent fixed the roof leak, water tested the roof, and replaced all roof tiles in the repaired area of the roof. Although Complainant does not believe the replacement roof tiles adequately match her existing roof tiles, the evidence presented at the hearing showed that the house has blended color roof tiles and the repaired area is within minimum standards for blended roof tiles.

6. Evidence of record was sufficient to support a finding that Respondent repaired all water damage in the interior of the home, paid a mold remediation company to test for any mold, and remediate as necessary. Although Complainant contends that the entry threshold was not properly remediated for possible mold, she did not present any evidence to establish that there was existing mold in said area.

7. Respondent corrected the rippled garage ceiling issue almost two years ago. However, there are now a couple of hairline cracks in the ceiling at this time and they require repair.

8. The first Respondent heard about these cracks was when Complainant filed a new Complaint against the drywall contractor within the last few months. It is unclear from the record in this matter whether or not Complainant filed any new Complaint on these issues two years past the deadline for complaining about the workmanship on a repaired surface.

9. The Registrar of Contractors’ inspector asserts that drywall hairline cracks are a one time correction within one year of the commencement of occupancy by a homeowner. Notwithstanding the inspector’s conclusion regarding the one year jurisdiction, these cracks occurred after the rippling in the garage ceiling was worked on and were repairs that should have corrected in an appropriate and effective manner. The inspector’s reliance on a guideline for repairs to cracks in ceilings is not reasonable, since this is a newly repaired area and has nothing to do with commencement of occupancy of the home. The Complaint in this regard is found to have been timely filed and the cracking is found to be unacceptable. Thus, Respondent remains responsible for correcting these cracks in a proper workmanlike manner.

10. In light of the fact that Complainant did not give Respondent any notice of the cracks in the drywall ceiling, prior to filing a new Complaint about said issue, Respondent should be given an opportunity to correct these cracks and not receive any further penalty for this remaining issue on the list of items to be corrected by the April 12, 2007 Order of the Registrar of Contractors.

CONCLUSIONS OF LAW

Respondent failed to fully comply with the terms and conditions set forth in the original Decision and Order issued in this matter.

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 ceiling cracks in the garage.[1] 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, that all other provisions of the previously entered April 12, 2007 Order of the Registrar of Contractors shall remain as previously written.[2] 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, June 22, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Absent mutual agreement of the parties, the corrective work must be performed during normal business hours (Monday through Friday, between 8:00am to 5:00pm). Furthermore, the parties are on notice that this direction for correction only applies to areas that were previously worked on to correct the ceiling ripples. [2] The original Order entered in this matter provided for a period of disciplinary probation and payment of a civil penalty. Everson testified that he has already paid the civil penalty. Thus, the only “lingering” penalty would be the provision for a 90 day period of disciplinary probation.

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