ALJDEC decisions subject to certification as final

06F-M1835-ROC · Registrar of Contractors · 2006-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2006 APPEARANCES: Complainant Sandra Holt appeared on her own behalf. Doug Pajak appeared on behalf of Respondent Femcon, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Femcon, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Femcon, Inc. (“Femcon”) is the holder of a Class B- license (No. 115916) issued by the Registrar of Contractors (“ROC”). Doug Pajak is Femcon’s qualifying party. 2. On or about January 14, 2005, Complainant Sandra Holt contracted with Femcon for Femcon to remodel an assisted living facility owned and operated by Ms. Holt. Femcon commenced its work on January 18, 2005 and continued until approximately April 13, 2005, when the facility passed its final building inspection. Femcon returned to the premises on one occasion on May 11, 2005 to perform additional work. See Exhibit 15. 3. On or about March 22, 2006, Ms. Holt filed a complaint against Femcon with the ROC alleging the following: Failed to complete work & as specified to standard &/or to code: countertop caulking; 4.5” stress crack from cook top/range inoperable; removed smoke detector; failed to include sound proof material in new wall; removed water spikit (sic) from north side; improper construction of new room above ceiling level. Gates do not meet code. Improper wiring.

4. ROC Inspector Jack Clark investigated Ms. Holt’s complaint. 5. Inspector Clark scheduled a jobsite inspection for April 25, 2006. Ms. Holt was present for that inspection. 6. On May 4, 2006, following the jobsite inspection, Inspector Clark issued a Corrective Work Order (“CWO”) under which the ROC gave Femcon days to take corrective action as follows: Complaint 1: Countertop caulking The caulking is separating from the wall, leaving a visible crack all along the top of the backsplash. The contractor is to correct by the appropriate means.

Complaint 2: Stress crack from cook top There is a crack growing from the SW corner of the cook top. The contractor is to correct by the appropriate means.

Complaint 3: The joint between the sink and cook top is uneven The miter joint is not flush and has an elevation difference of about 1/16” at the front. The contractor is to correct by the appropriate means.

Complaint 4: The cook top is inoperable The cook top has been connected to the power supply by others. No action required.

Complaint 5: Removed smoke detector The smoke detector has been removed from the north common room. The contractor is to correct by the appropriate means.

Complaint 6: Failed to install soundproofing as specified The plans show soundproofing in the north wall of the north common room. The complainant did not provide sufficient evidence to show that the soundproofing is missing. No action required.

Complaint 7: Removed water spikit (sic) from north side of house There is no hose bib on the north side of the house and the plans do not show one. No action required.

Complaint 8: Improper construction above ceiling level. The complainant did not show any construction deficiencies and the work apparently passed inspection by the City of Chandler. No action required.

Complaint 9: No power to the dryer The dryer does not turn on even though it is plugged in. The contractor is to correct by the appropriate means.

Complaint 10: Gates do not work The gates both had springs installed and did close and latch without aid. No action required.

Complaint 11: Did not treat for termites The complainant did not provide evidence that the contractor did or did not have a termite treatment done or even if a termite treatment is necessary. No action required.

7. At hearing, Ms. Holt testified that only three items of complaint remain at issue. Those items pertain to the removal of the smoke detector, the countertop installation, and improper wiring. 8. During the course of the hearing, Femcon agreed to install a hardwire smoke detector and tie it in with the other smoke detectors in accordance with City of Chandler electrical and fire codes. Ms. Holt testified that this was an appropriate resolution to this item of complaint. Femcon further agreed to restore electrical power to the outlet where the dryer is plugged in, and regarding the sitting room fan, to supply Ms. Holt with a universal remote and to render the fan operational. Ms. Holt testified that this was an appropriate resolution to this item of complaint. 9. Based upon the above, the sole remaining issue to be adjudicated is Ms. Holt’s complaint regarding the countertop. 10. Ms. Holt contended at hearing that although the stress crack appears in only one section of the countertop, that three sections need to be replaced because she is concerned that there will be a distinguishable color variation between the countertop sections if only one is replaced. 11. Inspector Clark testified that he observed a 4 ½” stress crack extending from the corner of the range top into the countertop. Inspector Clark opined that the crack could be due to the manner in which the area was cut or because of too much weight exerted on the countertop. Inspector Clark testified that Ms. Holt expressed to him that replacing only the cracked section of countertop was unacceptable because there could potentially be a problem with color variation due to the wear on the remaining sections and the amount of time that has elapsed since the initial installation. Inspector Clark testified that it would be impossible to judge whether an appropriate match was made until the section of countertop is actually replaced. 12. Mr. Pajak testified that although Femcon is willing to replace the cracked section of countertop, Femcon is not responsible for the crack. Mr. Pajak testified that the countertops were installed on or about March 22, 2005, Femcon’s work passed final inspection on or about April 13, 2005, and Ms. Holt did not notify Femcon of the crack until May 19, 2005. Mr. Pajak testified that he has no way of ascertaining whether there was an intervening cause for the crack, such as someone sitting or standing on the countertop, which is indicative of the raised miter joint. Femcon further asserted that it attempted to comply with all the terms of the CWO, but that because Ms. Holt would not agree to the replacement of only the cracked section of countertop, that she would not allow Femcon to perform the necessary corrective work and instructed Femcon to leave the premises. 13. In response to Femcon’s assertion that the crack was caused by excessive weight, Ms. Holt testified that no one was present at the facility until the day Femcon was notified of the crack, with the exception of her, her husband and cleaning people. 14. The Administrative Law Judge finds based upon the credible evidence of record, that Ms. Holt failed to present any probative or substantial evidence that the countertop crack was attributable to the installation performed by Femcon, as the evidence of record established that the crack could have been the result of excessive weight on the edge of the countertop. Further, assuming arguendo that Femcon was responsible for the stress crack, Femcon would have been ordered to replace that section of the countertop only, as there is no way to determine whether a significant variation in color would exist prior to the corrective work being performed. If the replacement had been unacceptable to Ms. Holt in terms of color variation, Ms. Holt’s remedy would have been to request a compliance hearing. CONCLUSIONS OF LAW In this proceeding, Ms. Holt bears the burden to prove, by a preponderance of the evidence, that Femcon is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its July 17, 2006 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Holt failed to meet her burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building code . . . in any material respect which is prejudicial to another without consent . . .” Because the parties stipulated at hearing as to the resolution of the smoke detector issue and the electrical wiring issues, the Administrative Law Judge cannot conclude that Femcon is in violation of A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Femcon with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Because the parties stipulated at hearing as to the resolution of the smoke detector issue and the electrical wiring issues, and because the Administrative Law Judge finds that Ms. Holt failed to establish that Femcon is responsible for the stress crack, the Administrative Law Judge cannot conclude that Femcon is in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Femcon a CWO directing it to accomplish specified remedial work within a stated period of time. The evidence of record established that Femcon attempted to comply with the terms of the CWO, however, was precluded from accomplishing full compliance due to the demand regarding the replacement of three sections of countertop imposed by Ms. Holt. Therefore, the Administrative Law Judge concludes that Femcon is not in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based upon the credible evidence of record, that Ms. Holt failed to establish that Femcon committed any wrongful acts that substantially injured Ms. Holt. Therefore, the Administrative Law Judge concludes that Femcon is not in violation of A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Femcon’s license. The ROC’s Citation in Case Number M06-1835, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Femcon’s license, and that the Citation issued in Case Number M06-1835, together with the Complaint upon which it is based, be dismissed. 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 will be 40 days from the date of that certification. Done this day, December 20, 2006.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of December, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors 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