ALJDEC decisions subject to certification as final

06F-M1829-ROC · Registrar of Contractors · 2006-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 14, 2006 and November 22, 2006

APPEARANCES: Complainants were represented by their attorney, Denise Troy and Respondent was represented by its attorney, Mike Schern. 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. Complainants retained Respondent to build a new custom home. Complainants allege numerous deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Although numerous issues were discussed during the first day of the hearing, at the outset of the second day of hearing, Complainants averred that they were going to limit this hearing to only five (5) issues of alleged construction deficiencies; namely the nailing of the roof, the perimeter fence, the baseboards, paint or other like material spattered onto the exterior of the home, and the grout discoloration on a specified exterior stone veneer column.

3. The following salient facts were adduced at the hearing and are important to note:

a. After the instant Complaint was filed with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection and after concluding his inspection, issued a Corrective Work Order (“CWO”). The CWO required Respondent to accomplish specified remedial work within a stated period of time. Per the CWO, any failure to comply with said Agency directive could subject Respondent to the imposition of a civil penalty. b. Respondent did not appear at the jobsite inspection. c. In regard to the aforementioned remaining issues to be determined by this hearing, the inspector’s CWO ordered Respondent to either address or correct the items, except for the baseboards. d. Complainants contend that the interior wall baseboards, throughout the home, are excessively wavy. Respondent contends that although the baseboards may show some waviness, they are acceptable within the minimum standards to be applied by the Registrar of Contractors. e. Evidence of record showed that Complainants’ roof has a “5:12” pitch. According to Complainants, such a roof pitch requires that the bottom three courses of roof tiles must be nailed down, as well as every other course in the field. The record presented herein was sufficient to show that such a nailing procedure was not performed. f. Complainants submitted into evidence an affidavit from Philip Coppola (“Coppola”). Coppola works for a forensic consulting firm, is a member of the American Institute of Architects, and has been working in the construction industry for twenty-seven (27) years. According to Coppola, the valley and field tiles were not installed in accordance with the building code and the manufacturer’s specifications, due to Respondent’s failure to nail properly in the valley and field areas of the roof. g. The plans and specifications for this home show that the home was to be built in accordance with the requirements of the 2000 International Building Code (“IRC”). Nevertheless, prior to the time that construction commenced on this project, the local building authority expressly adopted the 2003 IRC, prior to the time that construction actually began on the home. h. Evidence of record showed that both the 2000 and 2003 IRC require “one fastener per tile every other row and all perimeter tiles require one fastener.” i. Respondent’s president and qualifying party, Don Kosis appeared at the hearing and presented testimony. His position regarding the omitted nailing is based on several factors. First he used an experienced roofer who knows what he is doing. Second, the roof passed inspection by the local building authority. Third, Respondent presented a document from the Roof Tile Institute, which states that fasteners are not required on roofs that are sloped “5:12” or below. j. Complainants object to the fact that specified panels of their perimeter fence are not the same height or at least close to other areas of the same fence. Evidence of record showed that there is a distinct “step- down” on one section of the rear perimeter fence and other panels are not level with one another. k. Kosis contends that he was only obligated to build a fence that was six (6) feet high. He measured the significant step-down panel, which abuts the next door neighbor’s fence, and found same to be 72 inches from the top of the footer to the top of the fence. He further contends that there is no requirement to “perfectly” align various sections of the fence.

l. Evidence of record showed that Respondent has performed several replacement efforts on the patio post in front of bedroom no. 2. Notwithstanding Respondent’s most recent effort at remedial work, the Portland cement product, utilized for the grout type finish of the stone veneer, has significant variations in shading. Kosis contends that some degree of grout discoloration is normal and Complainants contend that it is excessive. m. Evidence presented at the hearing showed that there is paint or some other similar staining substance found in numerous areas of the exterior walls.

4. Based on all of 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. The roof was not nailed properly, in accordance with applicable code requirements. b. Paint or other stains on the exterior walls needs to be cleaned off. c. The cement product utilized to appear as grout on the stone veneer patio post outside of bedroom no. 2, reveals excessive variations in coloring or shading.

5. The findings contained in Finding of Fact no. 4, above, are also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

6. Respondent failed to fully comply with the terms and conditions of the CWO issued in this matter, in violation of the applicable charged section of the State’s Contracting laws. Thus, Respondent is subject to the imposition of a civil penalty.

7. The remaining items of the Complaint, presented at the instant hearing for determination, were either not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainants failed to sustain the requisite burden of proof.

8. 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. Therefore, Respondent’s prior record is properly deemed to be good 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

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2) and (3); namely Rule R 4-9-108.

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 4(a) through 4(c). 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 above-provided penalty, 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, December 5, 2006.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, 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