ALJDEC decisions subject to certification as final

06F-M2420-ROC · Registrar of Contractors · 2007-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2007. APPEARANCES: Cynthia A. Caton appeared personally. Amberwood Development, doing business as Amberwood Homes, was represented by its authorized employee, Marc Nassos. 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. Amberwood Development, Inc., doing business as Amberwood Homes (“Respondent”), is the holder of License No.077948, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about September 30, 2003, Carl E. Caton and Cynthia A. Caton (“Complainants”) entered into a Subdivision Purchase Contract (“Contract”) with Summerset Marketing Enterprises, Inc., doing business as “Amberwood Homes” for the purchase of a new residence to be constructed. The Contract does not list a Registrar-issued contracting license number. 3. Respondent constructed Complainants’ residence. 4. The Contract provided that Complainants’ master bathroom and second bathroom Villetta L4721 faucets and other Villetta products for the showers and tubs. 5. During construction, Ms. Caton telephoned Respondent’s office to request a change in the bathroom faucets to Castleby Model No. T4985CPC, an upgraded product. 6. Respondent forwarded Change Order Request Form #1 to Complainants. Among other things, that Change Order listed the faucet change as follows: “Change all bathroom sink faucets to Castleby chrome T4965, 8” widespread.” Those Change Order items had a listed cost of $300.00. 7. Ms. Caton signed that Change Order without reviewing and confirming that the model number for the upgraded faucets was correct. She later discovered that it was the incorrect model number. 8. Respondent installed the bathroom faucets per the Change Order. 9. Complainants paid the full contract price, plus several Change Orders to Respondent. 10. Complainants moved into their residence on July 1, 2004. 11. On June 8, 2006, Respondent was performing the following remedial repairs at Complainants’ residence: painting in the kitchen, attic entry, trim and doors throughout the house, and the walls in the laundry room and second bathroom. 12. On June 8, 2006, Complainants filed a Complaint with the Registrar alleging numerous items of deficient workmanship by Respondent. 13. In response to the filed Complaint, the Registrar’s assigned inspector, Dennis Cook, performed a jobsite inspection at Complainants’ residence to view the alleged deficiencies in Respondent’s workmanship. That inspection resulted in Inspector Cook issuing a Corrective Work Order dated October 6, 2006, which contained the inspector’s following findings:

The contractor should make the following corrections by appropriate means:

1. Exterior painting issues requiring corrective action include:

a. Garage doors b. Facias and pop-outs c. Edge of slab underneath doorways d. Touch up exterior walls as needed to achieve uniform coloration.

2. Interior painting issues requiring correction include:

a. Kitchen ceiling b. Attic entry c. Walls in laundry room d. Walls in bathrooms e. Prepare and repaint the front door.

3. Clean concrete splatters from the driveway surface. 4. Complete the formica end cap in the laundry room. 5. Install the correct faucets as specified in the contract documents. 6. Properly match end veneer at bathroom vanity.

The balance of the items listed in the complaint are [sic] acceptable, in the opinion of this inspector, and no correction is required.

14. Respondent is found to have timely complied with Corrective Work Order items 1, 2, 4 and 6. 15. While Respondent complied with item 3 of the Corrective Work Order by cleaning concrete splatters from the driveway, it damaged the driveway in the process of cleaning it. Respondent is responsible for repairing the damage it caused. 16. Respondent is not responsible for taking any action with respect to item 5. Respondent installed the specified faucets in the Change Order approved by Ms. Caton. She had the opportunity to review the Change Order for the bathroom faucets and had the last opportunity to raise the issue of the faucets being the incorrect model when they were being installed. 17. On or about November 9, 2006, Inspector Cook closed Complainants’ Complaint because the Registrar had not received a reply from them to the Registrar’s recent correspondence to them. 18. By letter dated December 19, 2006, Complainants corresponded to Inspector Cook. However, there was no mention of re-opening the case. 19. In January 2007, Inspector Cook reopened this case at Complainants’ request. 20. Respondent did not deviate from specifications by providing and installing the bathroom faucets because they were specified in the Change Order approved by Complainant. 21. Respondent complied with the Corrective Work Order. 22. Respondent’s damaging Complainants’ driveway during the power spraying cleaning of it to remove concrete is a wrongful act that substantially injured Complainants. The remaining items contained in the Complaint are determined to meet minimum workmanship standards. 23. At the hearing Inspector Cook testified that during his pre-hearing jobsite inspection he observed for the first time cracking beyond acceptable tolerances in Complainants’ driveway. That cracking is found to have been discovered beyond the statutory two-year period for the Registrar to investigate and to consider disciplinary action against Respondent.

CONCLUSIONS OF LAW

1. The filing of a complaint with the Registrar triggers certain legal rights and protections. One of them is the two-year limitation of A.R.S. § 32-1155(A). The filing tolls the running of the limitation. The closing of a complaint should accordingly have the opposite effect; it should cease the tolling of the statute. The closing of a case by an agent of the Registrar is an act of finality that has consequences, one of which is a lifting of the tolling of the statute of limitation. 2. Although the Registrar “reopened” the case upon Complainants’ request in January 2007, and such refiling was beyond the two year limitation for filing such complaints, except for the corrective work performed by Respondent within two years of the refiling date. 3. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, when it caused damage to Complainants’ driveway while power washing the driveway during the performance of remedial repairs pursuant to the Corrective Work Order. 7. Respondent violated the provisions of A.R.S § 32-1154(A) (7) by damaging Complainants’ driveway during the remedial repairs to it.

RECOMMENDED ORDER

Respondent’s License No. 077948 shall be suspended on the effective date of the Order entered in Case No. M06-2420 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has remediated the damage it caused to Complainants’ driveway while complying with the Registrar’s Corrective Work Order. If Respondent properly repairs Complainants’ driveway, and the Registrar approves such repairs, on or before the effective date of the Order entered in Case No. M06-2420, then the above-provided license suspension shall not take place and instead the Citation and Complaint in Case No. M06-2420 shall be closed. 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, November 14, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, 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