ALJDEC decisions subject to certification as final

06F-M2203-ROC · Registrar of Contractors · 2006-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2006. APPEARANCES: Robert Creed appeared personally. Kustom by Design, LLC was represented by its attorney, Michael A. Shern, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Kustom By Design, LLC (“Respondent”) is the holder of License No. 160659, a Class B- contracting license issued by the Registrar of Contractors. 2. Robert and Lora Creed (“Complainants”) contracted with Respondent for the construction of a home. The residence was scheduled to be completed by May 31, 2005. 3. On or about June 15, 2005, the City of Mesa’s Building Safety Division issued a written Inspection Report which indicated that Respondent’s workmanship had passed the final inspection. 4. Complainants subsequently filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 5. In response to the filed complaint, the Registrar of Contractors’ assigned inspector, Ted Gerold, performed a jobsite inspection on June 9, 2006 to view Respondent’s alleged deficient workmanship. 6. As a result of the jobsite inspection, Inspector Gerold issued a Corrective Work Order dated June 12, 2006, which required Respondent to timely perform corrective work to the following items:

Item 2. Paint peeling around bottom of exterior walls.

Item 3. Window in guest room sticks, very difficult to open.

Item 4. Cracked tiles in the entry.

Item 5. Fans in breakfast area and laundry not wired properly (light and fan not controlled separately).

Item 7. Painting of all trim and walls needs to be completed after drywall repairs. Item 8. Cabinet panel separating on dishwasher.

Item 9. Cracked door on cabinet over family room TV.

Item 10. Double doors in family room – strike plates not installed properly.

Item 11. Double doors in family room – doors are uneven, not square.

Item 12. Trim throughout house – some nails visible, seams very poorly finished.

Item 13. Interior doors – multiple doors that were not sanded properly prior to painting, some splintering on bottom where cuts were made.

Item 14. Interior doors – any doors cut were not painted on bottom.

Item 15. Pocket door into exercise room does not slide properly.

Item 17. Pool cleaning equipment has never worked properly.

Item 19. Skimmer on pool never finished properly.

Item 20. File drawers in office never finished properly – holes on inside drilled several times and not repainted.

Item 21. Grout missing or improperly applied in some areas on exterior rock.

Item 22. Stub out for gas line on back patio not completed per plans.

Item 23. South wall built-in bookcase in office – top is not square to walls.

Item 24. Closet doors in master bedroom – west side of one door not finished, west side doors do not come together properly (warped ?), both sides – closing mechanism sticks.

Item 25. Hot water line in kitchen whines loudly.

Item 26. Perimeter fence – each column has large cracks and stucco falling out.

Item 27. Main driveway has a large deep depression (south edge near door).

Item 28. The inside of all the exterior chimneys (sic) is raw wood.

Item 29. Perimeter fence stucco patch in southwest corner of back yard does not match the fence stucco.

Item 31. Electrical outlets around eves (sic) not completed per agreement.

7. Inspector Gerold determined that Respondent was not responsible for the following items:

Item 1. Final financial reconciliation not provided, invoices not provided. In addition numerous repairs have already been completed at (Complainants’) expense.

Item 6. Drywall – numerous repairs needed, nails/screw heads visible, some seams visible. INCLUDES CEILINGS.

Item 16. Stucco on exterior – numerous patches are different color and some a different texture.

Item 18. Salt water system on pool has never worked properly.

Item 30. Roof repairs never inspected – areas with loose tiles were observed.

8. On December 4, 2006, Inspector Gerold performed a pre-hearing jobsite inspection to view Respondent’s compliance with the Corrective Work Order. At the hearing, Inspector Gerold testified that Respondent had only complied with correcting Item 27: “Main driveway has large cracks and stucco falling out.” Inspector Gerold opined that Respondent failed to comply with the balance of the written directive. 9. Respondent contends that some of the ordered work was homeowner maintenance items. It is found that Respondent failed to correct those items within the first year of Complainants’ occupancy. Therefore, Respondent is responsible for repairing those items. 10. The Registrar of Contractors’ Minimum Workmanship Standards for Licensed Contractors for Swimming Pools – Mechanical provides that “Mechanical and/or electrical equipment supplied and installed does not perform correctly” should be corrected as follows:

During the first 30 days following substantial completion of the work contractor should carry out all manufacturer’s (sic) equipment warranties at the site of the installation. Thereafter, any manufacturer’s warranties should be carried out at contractor’s place of business.

11. The pool cleaning system installed by Respondent has never worked. Respondent was requested by Complainants to repair it, but Respondent did not do so. Respondent was ordered by the Registrar of Contractors to repair the pool cleaning system, but Respondent did not comply with that directive. Respondent is responsible for the repair work being performed in the field. 12. Respondent’s failure to install the stub out for the patio gas line per plans and its failure to comply with the Registrar of Contractors’ written directive to repair its numerous items of deficient workmanship as specified in the Corrective Work Order are wrongful acts that have substantially injured Complainants. 13. A review of the official records maintained by the Registrar of Contractors reveals that Respondent’s License No. 160659 was revoked on September 29, 2006 in Case No. M06-2040 and later in several other case. Therefore, Respondent may not perform any of the required remedial repairs previously ordered by the Registrar of Contractors in this matter.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the prior revocation of Respondent’s License No. 160659 does not deprive the Registrar of Contractors of authority to impose additional discipline upon that license for proven statutory and regulatory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainant had the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 160659 shall be revoked on the effective date of the Order entered in Case No. M06-2203. 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 21, 2006

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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