ALJDEC decisions subject to certification as final

06F-M2465-ROC · Registrar of Contractors · 2007-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2007 APPEARANCES: Complainant Julie Peters appeared on her own behalf. Robert Jeanneret appeared telephonically on behalf of Respondent R.A. Jeanneret. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Robert Allen Jeanneret, doing business as R. A. Jeanneret, is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Robert Allen Jeanneret, doing business as R. A. Jeanneret (“Jeanneret”), is the holder of a Class B license (No. 118227) issued by the Registrar of Contractors (“ROC”).[1] Robert Jeanneret is Jeanneret’s qualifying party and owner. On or about May 8, 2006, Complainant Julie Peters contracted with Jeanneret to perform stucco work to the exterior of Ms. Peters’ home, including a block wall fence.[2] The parties contract specified the following: Skupers (sic) are needed Bull nose stucco Finish lath Bridging off sheeting on roof, finish flashing Inset windows Cap on wall Fill gaps on home & fence Raised sand finish Paint house (customer has color) Gripper Primer on house

See Copy of contract contained in case file, the contents of which administrative notice was taken. The contract price was $15,000.00. Id. On May 8, 2006, Ms. Peters paid Jeanneret $10,000.00. Id. Jeanneret began to perform its work, however, the progress was slow. On May 19, 2006, the parties amended the contract, deducting $5,500.00 from the contract price due to the fact that Ms. Peters hired another individual to perform some of the work and because Ms. Peters had supplied the materials for the job. See notation on contract. Ms. Peters credibly testified that the $5,500.00 deduction from the contract price was due to the fact that she had to hire another individual to perform the lath to the east side of the home and because Ms. Peters supplied all of the materials for the job. On June 15, 2006, Ms. Peters filed a complaint against Jeanneret with the ROC. In her complaint, Ms. Peters alleged that Jeanneret failed to meet its contractual obligations including the following: i) Jeanneret was to have completed the work within two weeks and failed to do so; ii) Jeanneret failed to lath the east side of the home; the home was exposed to rain and Ms. Peters had to hire another individual to perform this work; iii) Jeanneret failed to seal the roof from rain with a stucco border; iv) Jeanneret utilized Ms. Peters’ mixer and broke it; v) Windows are covered in stucco and hard water spots due to Jeanneret not covering windows during work. ROC Inspector Ted Gerold investigated Ms. Peters’ complaint. Inspector Gerold scheduled a jobsite inspection for August 3, 2006. Present for that inspection were Ms. Peters and Sean Jeanneret. On August 4, 2006, following the jobsite inspection, Inspector Gerold issued a Corrective Work Order (“CWO”) under which the ROC gave Jeanneret days to take corrective action as follows: The Contractor is to correct the following by appropriate means: 1. All cracking and peeling of stucco on house and walls. 2. Replace all scratched windows on east side of house only. 3. Repair stucco mixer. 4. Remove stucco residue from boulders as necessary, or replace. 5. Address the issue of respondent using complainant’s materials. Note: In this inspector’s opinion, this contractor is not responsible for the following: 1. Installation of weep screed. 2. The leaks from the parapets. 3. Items #1 and #2, complainant should have had a properly licensed contractor install the lath so that this agency could have held that license responsible for the weep screed and parapets. At hearing, Inspector Gerold testified that he performed a pre- hearing inspection on February 20, 2007. Present for that inspection was Sean Cooke, a friend of Ms. Peters. Inspector Gerold testified that one small area had been worked on since the issuance of the CWO, but that none of the items in the CWO were addressed and that there has not been compliance with the CWO. Inspector Gerold testified that there is excessive cracking and peeling of the stucco on the walls surrounding the property and the house, that the windows on the east side of the house are excessively scratched, that Sean Jeanneret did not deny breaking Ms. Peters’ mortar mixer, and that there was stucco residue on the landscape boulders. Inspector Gerold further testified that the parties’ contract does specify that Jeanneret was responsible for finishing the flashing on the roof and that he would have held Jeanneret responsible for this work in the CWO had it been addressed at the jobsite inspection. Inspector Gerold opined that the application of the stucco was very poorly done and not corrected. Ms. Peters credibly testified that the stucco work performed by Jeanneret was extremely poor, is peeling off of the house, that Jeanneret failed to protect the windows, and when Jeanneret sent someone to clean the stucco from the windows, they were scratched in the process. Ms. Peters submitted photographs into evidence depicting the poor condition of the stucco, windows, and the debris on the landscape boulders. See Exhibits 1 through 11. Ms. Peters also testified that she had to replace the foam of the roof because Jeanneret did not finish the flashing and there was no stucco on the parapet walls. Ms. Peters paid $2,800.00 to R & S Foam Roofing to perform this work. See Exhibit 16. The invoice dated January 29, 2007, indicated the following: When parpits (sic) were added, there was NO Z-BAR installed, the water goes right into the customer (sic) house. Walls where (sic) only sealed by coating & webbing. A lot (sic) of areas where (sic) pulled out. Also caused a leak.

See Exhibit 16. Ms. Peters credibly testified that five windows on the east side of the home were scratched excessively and that one window on the west side was stuccoed shut. Ms. Peters submitted into evidence estimates from Home Depot for the replacement of these windows, totaling $1,271.90. See Exhibit 15. Ms. Peters submitted into evidence three estimates for the necessary corrective work. The first estimate in the amount of $22,400.00, which includes window replacement, is from Quinones Construction, an unlicensed contractor. See Exhibit 13. The other two estimates are from licensed contractors. The first is from S & S Plastering and for the same sand finish that Jeanneret was supposed to install, the estimate is for $11,400.00. The second estimate in the amount of $21,685.00 is from JCE Company and includes the replacement of two windows, but does not include the painting of the house, which was included in Jeanneret’s contract. See Exhibit 14. Ms. Peters submitted to the tribunal a summary of costs related to contractor damage. This summary included an amount of $2,800.00 to install eight windows ($350.00 per window), however, Ms. Peters did not provide any supporting documentation to substantiate this cost. Ms. Peters credibly testified that the mixer remains broken. The summary provided by Ms. Peters sets forth the amount of $299.00 to repair the mixer, however, Ms. Peters did not provide any supporting documentation to substantiate this cost. Mr. Jeanneret testified that the contract price was reduced by $5,000.00 because Ms. Peters was going to hire another contractor to perform the flashing and work to the parapets, and that $500.00 was deducted for materials. Mr. Jeanneret testified that Ms. Peters accepted Jeanneret’s work and the cleaning of the windows. Mr. Jeanneret testified that the job had been started by others and that Jeanneret took over the job. The Administrative Law Judge finds that Jeanneret accepted the surface of the home as being adequate to support its work. Mr. Jeanneret testified that the mixer was repaired. Mr. Jeanneret acknowledged that his son, Sean, was dealing directly with Ms. Peters and that the information he was testifying about was gleaned through conversations with his son. Mr. Jeanneret requested an opportunity to submit a statement from his son. As such, the Administrative Law Judge held the record open for a short time in order to allow Mr. Jeanneret the opportunity to submit such statement and Ms. Peters an opportunity to respond to the statement. Both parties submitted the respective documents in a timely manner and both were considered in the rendering of this Decision and Order. The Administrative Law Judge finds that Jeanneret performed substandard and improper work at Ms. Peters’ residence resulting in damage to six windows, to the roof, the mixer, and landscape boulders, and a stucco application that falls well below industry standard that is in need of serious corrective measures. CONCLUSIONS OF LAW In this proceeding, Ms. Peters bears the burden to prove, by a preponderance of the evidence, that Jeanneret is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(2), (A)(3), (A)(7), (A)(13) and/or (A)(23) as charged by the ROC in its October 26, 2006 Citation and Complaint. See Arizona Administrative Code R2-19-119. 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). The Administrative Law Judge concludes that Ms. Peters met her burden of proof as to five of the ROC’s six charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Jeanneret failed to complete the project in that it did not complete the flashing it was contracted to perform, and such failure is without legal excuse. Therefore, the Administrative Law Judge concludes that Jeanneret violated A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . . in any material respect which is prejudicial to another without consent of the owner . . .” The credible evidence of record established that Jeanneret departed from plans and specifications by failing to properly complete the flashing as specified by the parties’ contract. Therefore, the Administrative Law Judge concludes that Jeanneret violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Jeanneret with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Jeanneret failed to perform its work at Ms. Peters’ home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Jeanneret violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include their contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction related activities. This requirement would be applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Ms. Peters did not address this alleged violation. However, a copy of the parties’ contract was utilized during hearing and is contained in the case file. That document does contain the letters “ROC” preceding Jeanneret’s license numbers. In view of the foregoing, the Administrative Law Judge cannot conclude that Jeanneret violated A.R.S. § 32-1154(A)(13). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Jeanneret a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Jeanneret failed to perform the required corrective work without valid justification. Therefore, the Administrative Law Judge concludes that Jeanneret violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Jeanneret committed wrongful acts that substantially injured Ms. Peters by failing to complete the project, by failing to properly install the stucco, and by damaging six windows, landscape boulders, and the mixer. Therefore, the Administrative Law Judge concludes that Jeanneret violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Jeanneret’s Class B license. Upon consideration of all of the facts and circumstances presented by this case, including Jeanneret’s suspended license status, the Administrative Law Judge concludes that the ROC should revoke Jeanneret’s Class B license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Jeanneret’s Class B license shall be revoked on the effective date of the Order entered in this matter. 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, March 12, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A review of the ROC’s licensing records reveals that Jeanneret’s license was suspended on October 1, 2006 for non-renewal. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C). [2] The contract was signed by Sean Jeanneret, Mr. Jeanneret’s son. A review of the documents contained in the administrative record reveals that Mr. Jeanneret suffered a stroke in or about February 2006.

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