ALJDEC decisions subject to certification as final

06F-M2429-ROC · Registrar of Contractors · 2007-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2007 APPEARANCES: Complainant was represented by his attorney, Yvonne Ayers and Respondent appeared through its director and qualifying party, Bill Buxton. ADMINISTRATIVE LAW JUDGE: Mark A. Silver

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

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to install a new air conditioner on his home, along with new register grills, and any necessary new duct work to accommodate the new air conditioner. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and these issues are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Evidence of record showed that subsequent to Respondent completing work on the project, Complainant was dissatisfied with the installation and thus, filed the instant Complaint with the Registrar of Contractors alleging, among other things, that Respondent failed to install a Goodman unit, as required by the applicable contract, that the unit installed was less tonnage than what was specified in the contract, and that Respondent failed to complete repair of drywall damage to the areas adjacent to the installation of the new registers. b. After filing the Complaint, the matter was assigned to one of the Registrar of Contractors’ inspectors, who conducted a jobsite inspection. Subsequent to concluding his inspection, the inspector issued a Corrective Work Order (“CWO”), requiring Respondent to remove the existing air conditioner and replace same with a 4 Ton Goodman unit, correct the ductwork to assure proper cooling of the home, and to complete all drywall repairs. c. Evidence of record showed that subsequent to issuance of the above-described CWO, Respondent replaced the air conditioner and also performed specified ductwork remedial work. Although Respondent has also worked on the drywall repairs, the painting of said repaired areas has not been completed. d. The assigned inspector appeared at the instant hearing and presented testimony. He completed a pre-hearing jobsite inspection, just prior to the date of the instant hearing. In his opinion, the drywall repair work performed by Respondent was adequate and merely required necessary and proper paint work to be a complete repair. The Registrar of Contractors’ inspector did not see any problem with the texture work applied to the drywall repairs. e. The Registrar of Contractors’ inspector checked the air flow in the bedroom wherein Complainant contends he is unable to get adequate cooling and found that the air flow appeared to be proper. However, the inspector did not have any technical equipment to properly check and analyze the issue. f. Complainant’s daughter and son-in-law both appeared at the hearing and testified that the rear child’s bedroom does not get as cool as the rest of the home during the warm months of the year. In addition, Complainant’s son-in-law testified that there is some type of water leak either coming from the roof where the air conditioner is installed or from the air conditioner itself. He testified that he went into the attic and found wet insulation beneath the air conditioner area of the roof. He also contends that he observed ductwork that was either not properly sealed together or was severely crimped. g. Complainant contends that Respondent failed to install additional roof sheeting material underneath the area immediately adjacent to the air conditioner installation. The Registrar of Contractors’ inspector testified that he went on the roof at the pre-hearing inspection and did not find any excessive or unusual deflection in said area. h. Complainant contends that the air conditioner makes an excessively loud noise when it first comes on. The Registrar of Contractors’ inspector testified that he did not observe any unusual or unacceptable noise from the system. i. Evidence of record established that the parties have experienced a serious communication breakdown, making it very difficult for Respondent to return to the premises and complete any final remedial work. Sharply conflicting testimony was presented by both parties regarding the fact that the other side failed to answer or return phone calls. The testimony on this issue was such that no basis exists for the disbelief of either side’s assertions in this regard. j. Complainant’s daughter and son-in-law both testified to Respondent’s failure to take necessary precautions to protect the inside of the home from construction debris damage. In addition, Complainant claims that a roof leak caused by Respondent’s initial failure to properly seal the installation of the second air conditioner unit installation damaged a bedspread. Complainant claims $60.00 in damages for this incident.

3. The weight of the evidence of record was sufficient to support a finding that the following constitute existing construction deficiencies attributable to Respondent:

a. Water continues to enter the attic, from either the air conditioner itself or the failure of Respondent to adequately seal around the roof penetration for the air conditioner. b. The interior drywall repairs need to be properly painted, in order to blend in with the adjacent areas of the walls or ceilings in question. c. The rear child’s bedroom in the home does not receive adequate cooling, in comparison to the rest of the home. d. There are gaps, crimps, and improper sealing of specified areas of the ductwork.

4. Although Respondent is responsible for any interior damage caused by his work on the project, the Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate any such monetary damages. In the event that Complainant continues to claim entitlement to monetary damages against Respondent, then such claim will need to be brought before a civil court of competent jurisdiction.

5. The items set forth in Findings of Fact 3 (a) through 3 (d), above, not only constitute substandard and unacceptable workmanship but also a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

6. Although Respondent was not shown to have fully complied with all of the terms and conditions of the above-described CWO, the communication problems between the parties would militate against the imposition of any civil penalty in this regard.

7. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. In this regard, such a condition should be inserted in the Order entered in this matter, as a means to allow Respondent to avoid the imposition of otherwise appropriate disciplinary sanctions. The parties are advised that they must cooperate with one another in this regard. Respondent will be required to place in writing any requested dates and times to appear at Complainant’s home to perform the remedial work. Complainant must immediately respond to any written request for access, thereby giving his consent to allow Respondent access to the home during normal business hours, unless the parties mutually agree to some other time.[1]

8. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed a prior disciplinary suspension of Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

9. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended by operation of law, for failure to renew, since December 1, 2006. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on the deficiencies described in Finding of Fact 3 (a) through 3 (d),above or is denied reasonable access to perform said work, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class K-39 license shall be placed on a period of disciplinary probation for ninety (90) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that any restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $2,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, January 9, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Normal business hours are generally defined as Monday through Friday from 8:00am to 5pm.

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