ALJDEC decisions subject to certification as final

06F-M2373-ROC-RES · Registrar of Contractors · 2007-12-13

STATE OF ARIZONA

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2007.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent appeared through its Divisional President, Steve Sidoti.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Prior to the hearing, Respondent had submitted a somewhat belatedly filed motion to continue the scheduled hearing which, after review and consideration, was denied by the assigned Administrative Law Judge. Respondent thereafter promptly submitted another motion to reconsider the prior denial ruling, and this motion was similarly denied by the tribunal. All parties were informed telephonically of the foregoing rulings by the Administrative Law Judge by staff members of the Office of Administrative Hearings.

2. Pursuant to a written contract, Respondent agreed to and did construct for and sell to Complainants a new residence consisting of a one- story home with a basement level.

3. The credible evidence revealed that the tile roof over most all portions of Complainant’s dwelling contained numerous visible humps and dips in virtually every roofing plane or tiled section. This condition is found to be substandard and unworkmanlike, and is also indicative of a potential structural problem likely involving either damages to or intrinsic flaws in the trusses. Respondent is required to adequately rectify the roofing deficiencies after seeking and obtaining appropriate engineering inspections, reports and recommendations.

4. The flooring on the level above the basement was shown to contain several areas that are unlevel and squeaking, also causing some extent of wall movement on the first level. This condition is substandard and unworkmanlike, also indicative of a structural problem likely involving either damage to or intrinsic flaws in the trusses under the flooring. Respondent is required to adequately rectify the flooring deficiencies after seeking and obtaining appropriate engineering inspections, reports and recommendations.

5. The credible testimony of Complainants tended to indicate that they had made and communicated to Respondent’s representatives their floor covering selection of a porcelain tile material for a substantial portion of the first level flooring. It was not disputed that the type of tile actually installed in Complainants’ home was not porcelain but was plain ceramic in composition. To the extent that Respondent’s representative either did not know that the designated tile material was not porcelain or that a mistake in recording the Complainants’ designation was made, such mistake was not mutual but was instead a unilateral mistake by or on behalf of Respondent. Complainants communicated numerous complaints on a continuing basis with respect to the type of

tile materials provided and installed. This was a selected upgrade option by Complainants after having expressly informed Respondent’s representative of Complainants’ specific preference as to type of tile materials. Although the evidence was unclear as to whether or not the ultimate upgrade charge to Complainants was greater or the same as for plain ceramic tile, it is found that Complainants have sufficiently demonstrated their entitlement to receive installation of porcelain tile materials on the floor areas to be tiled.

6. With respect to necessary remedial measures, Respondent is determined to be obligated to remove and replace the presently-existing ceramic tile flooring. Complainants are to be given a reasonable opportunity to select a presently available porcelain tile material, reflecting the same approximate cost price as had existed on the date of original selection by Complainants. Any interim price increases must be borne by Respondent, since Complainant was not shown to have been responsible for the time delay and in fact have been continually communicating their complaints to Respondent with respect to the type of tile installed. However, to the extent that Complainants were previously charged only for a possibly lower cost installed ceramic tile, Complainants must agree in advance to pay Respondent the then-existing price difference or, alternatively, must select a lower cost porcelain tile material for installation.

7. Alternatively, as to the floor tile corrections, the parties may “mutually” agree to another form of remedial action to resolve the floor tile matter, including a possible monetary adjustment. Since entitlement to removal and replacement of the presently existing floor tile has been sufficiently demonstrated, there is no need to address other proven deficiencies in the existing ceramic flooring with respect to the need for grouting and other workmanship deficiencies. However, if alternative arrangements between the parties that do not encompass replacement action are mutually concluded, the identified deficiencies in the existing flooring, such as the need for proper grouting, must be addressed and accomplished by Respondent.

8. Another demonstrated deviation by Respondent consisted of not providing the expressly selected front elevation for Complainants’ model that was offered as a choice for prospective purchasers. Although it appeared that the chosen elevation had columns and pop-outs around windows and garage doors, Complainants expressed their willingness to eliminate the columns and to have only the pop-outs provided. Respondent must undertake and complete proper work to provide all pop-outs that were omitted. It is noted that Complainant’s election to have had stone installed around a portion of the front facing, encompassing one of two windows and one of two garage doors, renders the omission of pop-outs less prejudicial in such locations, but for the purposes of symmetry may still be required aesthetically. Complainants must communicate their choice as to the stone covered locations in advance of the pop-out work by Respondent.

9. Another proven departure from applicable specifications by Respondent related to the installation of a 1/3-horsepower garbage disposal under the kitchen sink. The express language contained in a sales brochure, utilized by Respondent at the point of sale as an inducement for prospective homebuyers to conclude purchases, indicated that the homes constructed by Respondent would provide a garbage disposal having a ½- horsepower capacity. No merit is found to Respondent’s position that certain wording on the brochure materials reserved to the builder the right to change, substitute or reduce expressly described construction benefits. This installation by Respondent of a lesser disposal unit is found to constitute a material and prejudicial departure from the construction requirements applicable to the purchased residence, and appropriate corrective action by Complainant is required. (It is noted that Respondent, on the record at the hearing, altered its prior position opposing any changes at this time and expressed a willingness to provide and install a disposal of the size described in the sales brochure).

10. The contractual entitlement as part of the overall purchase arrangements for Complainants to receive a “2-10 Warranty” was demonstrated, but such warranty, or

its substantial equivalent, although repeatedly promised, has not been obtained or delivered by Respondent. It did appear that Respondent is continuing its efforts to furnish Complainants with the described warranty, but more than adequate time has passed for this element of the complaint to have been satisfied.

11. The granite kitchen countertop selected by Complainants was shown to be excessively sagging, requiring the providing and installing of appropriate support members beneath portions of the countertop. This work has not been completed, and Respondent remains obligated to properly rectify the sagging condition of the granite countertop.

12. Although various corrections or repairs to the kitchen cabinetry have been accomplished by Respondent, including remedial work in the area of the oven to achieve a proper fit, certain molding or trim pieces have not been provided and appropriately finished. Molding was also shown to be missing near a bedroom door, and certain plugs have not been painted. These deficiencies must be properly remedied by Respondent.

13. Several electrical outlets and switches throughout the dwelling were shown to be not properly flush with the wall, and appropriate corrective measures by Respondent must be undertaken and completed.

14. The strike plates on certain doors are not operating as intended so as to enable proper and necessary closing, opening and bolting of the affected doors. Effective repair work by Respondent is found to be necessary.

15. Portions of the top course along the exterior block wall were shown to lack proper filling with grout and another portion of the wall adjacent to an RV gate was shown to presently exhibit a degree of inconsistency as to height. Additionally, the

block wall requires the placement of drainage blocks at certain locations along the bottom course to enable proper water drainage with respect to the rear yard of Complainant’s property. Appropriate corrective action on portions of the block wall must be undertaken and accomplished by Respondent. However, no entitlement by Complainants was sufficiently demonstrated to receive a decorative stucco application on the inside of the perimeter block wall. Similarly, Complainants failed to sufficiently prove any entitlement to more or different landscaping on their lot.

16. The credible evidence tended to indicate that Respondent’s representatives had disturbed the original carpeting installation while seeking to repair holes and other problems in the underlying floor. After the work, Respondent did not replace and secure the disturbed carpeting at several locations. The loose carpeting must be securely re-tacked by Respondent.

17. The baseboard or lower trim section along bottom of the entertainment center was shown to be overly high so as to obstruct part of the lower shelf. Respondent must remove the unacceptably high trim piece and provide and install lower trim materials of the proper height.

18. The evidence revealed that the faucets and fixtures in the master bathroom shower and in another bathroom location were unacceptably loose, requiring appropriate corrective action on the part of Respondent. Additionally, a portion of the backsplash on a cultured marble vanity appeared to be too short, leaving an unacceptable visible gap at one location, and also some irregularity exists on one of the shower wall cultured marble panels near a window, both of which cultured marble problems must be properly rectified by Respondent.

19. Notwithstanding the contents of the prior Finding of Fact relating to complaints in the master bathroom, the Complainants were unable to sustain their

applicable burden of proof with respect to their entitlement to have the stall shower in the master bathroom enlarged. Similarly, Complainants did not sustain the burden of sufficiently proving any entitlement to receive a different jetted bathtub, made by a different manufacturer, in the master bathroom.

20. A chip or some form of damage to a portion of a riser on the stairs was determined not to constitute a proper subject at the instant hearing in view of the fact that the filed complaint and addendum failed to sufficiently identify such item of alleged deficiency and, more importantly, Respondent was never given adequate prior notice of this problem.

21. Following a jobsite visit by the Registrar’s assigned Inspector, a written Corrective Work Order was issued to Respondent effectively confirming the need for appropriate remedial action by Respondent on a significant portion of the items encompassed within the filed complaint. Although by the time of the hearing several complaint items were admittedly rectified by or on behalf of Respondent, a good many identified deficiencies were not corrected and still continue to exist. It must be held that Respondent has not substantially complied with the terms of the Inspector’s directive. Irrespective of whether such failure to comply was attributable to Respondent’s responsible personnel at the time or to its selected subcontractors, the impact upon Complainants is the same. Far more than a reasonable time duration was allowed to pass without achieving compliance, even with respect to some items ultimately rectified long after the directive had been issued.

22. The ongoing course of conduct, including prolonged periods of inaction on the part of or attributable to Respondent reflected a disregard of the entitlements and comforts of Complainant as well as of its duties as a licensed contractor in this State. Some recent genuine progress in resolving many, if not most, of the remaining construction problems, while somewhat commendable, does not erase the extremely

long period during which Respondent was not effectively responsive to valid communicated complaints and directives.

23. The numerous items of complaint still remaining uncorrected or not timely corrected are found to reflect adversely upon Respondent’s workmanship. Several material and prejudicial deviations or departures by Respondent from applicable plans, specifications or other contractual entitlements were sufficiently proven, more specifically relating to the floor tile, the front elevation, the garbage disposal and the “2-10 Warranty.” Additionally, Respondent’s prior unresponsiveness, ineffective responses or initial refusals to rectify legitimate items of complaint leading to its failure to have remedied the reported deficiencies for more than a reasonable time duration is further determined to constitute a wrongful (but not a fraudulent) act, resulting in detriment to the homeowner/Complainants within the meaning of another contracting law provision charged hereunder as having been violated by Respondent.

24. All other enumerated allegedly deficient items set forth in the originally filed complaint and in a subsequently filed addendum were either admittedly corrected, no longer in issue between the parties, not found to constitute prejudicial deviations from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

25. No valid reason is perceived in this case to depart from a long- standing policy of the Registrar to afford a contractor, such as Respondent, a further opportunity to undertake and complete appropriate corrective measures on the interior and exterior of Complainants’ home.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the

standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The evidence of record adequately established violations by Respondent of the provisions of A.R.S.§32-1154(A)(2), (7), (23) and (3); namely, Rule R4-9-108, A.A.C., as charged in the issued Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class B licenses each be actively suspended until the Registrar receives written proof that Respondent has accomplished proper remedial work on all complaint items set forth as requiring remedial action in Findings of Fact numbered 3 through18, inclusive.

It is further recommended that if written proof is filed with the Registrar on or before this Order’s effective date that Respondent has accomplished the above-described corrective work in a proper, workmanlike manner, then the above-provided active license suspension shall not be imposed.

It is further recommended, in addition to the above-provided penalty, if any, that Respondent pay the sum of $300.00 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 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 will be forty (40) days from the date of that certification.

Dated: December 18, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

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