ALJDEC decisions subject to certification as final

06F-M2266-ROC · Registrar of Contractors · 2006-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2006. APPEARANCES: Michael Loggins appeared personally and was represented by his attorney, Kevin R. Harper, Esq. Tyler Mikal Hendrix did not appear. 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. Tyler Mikal Hendrix, doing business as Tyler Hendrix (“Respondent”) is the holder of License No. 186676, a Class B- contracting license issued by the Registrar of Contractors. 2. On or about June 29, 2005, Michael Loggins entered into to a contract with Respondent for the construction of new residence in Apache Junction, Arizona. 3. Respondent began construction of Complainant’s residence in October 2005. 4. By March to April 2006, Complainant had recognized serious problems with Respondent’s performance of its contractual obligations. 5. Complainant hired Inspector J. T. Smith, the holder of Home Inspector License No. 39991 issued by the Arizona Board of Technical Registration, to inspect the progress of the project. 6. On May 12, 2006, Inspector Smith performed a jobsite inspection at Complainant’s residence and issued a written report with the following observations: 1). The house is on the drywall stage. We were called in because the owner is disappointed in the workmanship of his contractor and wanted a professional opinion on the quality of workmanship. 2). This is a large custom home and one should expect quality workmanship in this type of home; however, the quality is at best “mediocre track home” type and at worse it is sub- standard in several areas. 3). The drywall job, in general, is below standards. Photos will only show a small portion of the defects, but there are many. 4). The windows are not square or poorly installed. 5). The Master Bath glass block window is not properly installed. 6). The roof has several cuts and holes. 7). The roof drainage seems to be poorly designed. With one area that appears that it will pond water, two very large areas draining into one scupper each. Then there are 4 scuppers draining right onto the observation deck. 8). There are also some structural issues including having to tie up the ceiling beams in one area, lack of support in the master tub, and lack of support boards for the garage door and openers.

7. On May 17, 2006, Complainant filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 8. As a result of Complainant’s filed complaint, the Registrar of Contractors’ assigned agency inspector, Ted Gerold, performed a jobsite inspection to view Respondent’s workmanship. 9. Inspector Gerold’s jobsite inspection resulted in the issuance of a Corrective Work Order dated June 23, 2006, which directed Respondent to perform remedial repairs to specific items and required no action by Respondent to certain other items, as follows: 1). Master bedroom arch is within standards, no action required by contractor. 2). Correct master shower glass block window framing, inside only. However, if all exterior walls are supposed to be sheated (sic), then this contractor is to ensure they are. 3). Build up soap nook per contract and/or agreement, and build shower seat at proper phase of construction. 4). Master bath tub does not have to be installed at this time, but contractor should finish framing. 5). All walls and ceilings should not bow or bulge more than 3/8” in 8 feet. This includes items #6, #10, #11, #12, #14, #16, #17, #21 and #29 in the Complaint.[1] 6). In regards to the way the vegas were hung from the ceiling in the game room, insufficient was provided to show that they were installed improperly. 7). All window framing and reveals should be within 1/8 of an inch in difference. This includes items #7, #18, #20 and #23.[2] 8). Finish all shelving in closets per contract. 9). All door openings should be square, plumb, and level, and when doors are hung, should clear 1/8” top and sides. This includes items #8, #31, #33 and #34.[3] 10). All exterior doors to be properly sealed, including thresholds. 11). Master hallway picture nook arch is not level. 12). Remove all construction debris from vegas in dining room. 13). Curfing to door leading into garage should be one piece. 14). In this Inspector’s opinion, the texture on the kitchen hallway arch matches the rest of the house within industry standards. 15). Fix electrical outlets in kitchen south wall per code. 16). Door frame to pantry not plumb nor level. 17). Finish drywall on main door in family room. 18). Ensure all niches at fireplace and entertainment center are square, plumb, and level. 19). Insufficient evidence was provided to show that contractor did not properly repair drywall ceiling leaks at rear porch area. No action at this time is required by the contractor. 20). Observation deck floor does not need to be finished at this time. 21). Contractor is to clean and repair roof after painting is completed. 22). Properly transition and finish stucco and drywall at front entrance. 23). Ensure stucco is square, plumb, and level around all windows. 24). Regarding the missing garage 2X6 door bucks: If the manufacturer’s installation specs indicate the installation of them, then this contractor is responsible for installing them.

10. In his Answer to the Citation and Complaint, Respondent claims, among other things, that he was denied access to perform the remedial work required by the Corrective Work Order. 11. The Registrar of Contractors referred Case No. M06-2266 to the Office of Administrative Hearings, an independent agency, for formal hearing. 12. The commencement of the scheduled hearing was delayed to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 13. At the hearing, Inspector Gerold testified that Respondent’s work was sloppy, and that he failed to comply with the Corrective Work Order. 14. After the issuance of the Corrective Work Order, Complainant did not receive any requests from Respondent for access to the jobsite to perform the required remedial repairs. 15. Complainant’s wife, Beth Loggins, credibly testified that on July 1, 2006, she went to the jobsite and discovered a young man performing drywall work. Ms. Loggins asked him who he worked for. The individual replied that he did not work for anyone. After he was unable to produce a contractor’s license, Ms. Loggins told the individual to leave the premises, which he did do. 16. Respondent is found not to have been denied reasonable access to Complainant’s jobsite. 17. Respondent’s failure to comply with the Registrar of Contractors’ Corrective Work Order and his failure to comply with minimum workmanship standards are wrongful acts that have substantially injured Complainant.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has 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)(7) as cited by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(23) as cited by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-19-108, as cited by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s License No. 186676 shall be revoked on the effective date of the Order entered in this matter. If Respondent fully complies with the Corrective Work Order issued by the Registrar of Contractors in this matter on or before the effective date of the Order entered in this matter, then the above-provided revocation shall not take place but instead Respondent’s license shall be suspended for five days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. If the above-provided alternative penalty is applicable, Respondent shall pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 contracting 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. § 32-1101(A)(1), 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 will be 40) days from the date of that certification.

Done this day, December 11, 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 ___________________________

----------------------- [1] Item 6: Master bedroom bow in south wall; Item 10: Master hallway bow on end of southwest wall; Item 11: Nursery/Den bow in east wall not fixed, bow in south wall east side not fixed; Item 12: Nursery/Den bow in closet on south wall both sides of door; Item 14: Main hall bow in west wall, bow in east wall; Item 16: Laundry room bow in east and south wall; Item 17: Game room bow in west wall, fix vegas on the ceiling (hung inappropriately); Item 21: East bedroom bow in north wall; and Item 29: Garage bow in north wall on the west side. [2] Item 7: Master bedroom east wall south window frame needs to be fixed; Item 18: West bedroom fix window framing; Item 20: East bedroom fix framing around window and in closet shelving incomplete; and Item 23: Nook – check window framing. [3] Item 8: Master bedroom outside door no seal and door frame is not level; Item 31: Exterior garage door seal and frame is uneven; Item 33: All interior door frames need resetting, leveling and ready for doors to be hung appropriately (Door shims were not broken off and the drywaller knocked them in behind the curfing).

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