ALJDEC decisions subject to certification as final

06F-S0212-ROC · Registrar of Contractors · 2006-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19th, 2006; 9:00 a.m. APPEARANCES: Complainants, Mr. Eduardo and Ms. Norma Gonzalez, appeared and represented themselves. Respondent, Mitten Construction, LLC, was represented by Mr. Bill Mitten, Managing Member. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent herein, Mitten Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 185800. 2. Complainants, Mr. Eduardo and Ms. Norma Gonzalez, a married couple, purchased their newly constructed home from Respondent, who had constructed it, in Hereford, Arizona, in June, 2004, and took possession thereof in July of that same year. 3. Complainants noticed several construction defects in their home, not the least of which was problems with floor tiles cracking, and made complaints and requests to correct these problems to Respondent. 4. Respondent attempted some remedial measures, but many were ineffectual. Thus Complainants filed the instant Complaint with the Registrar of Contractors, in its Sierra Vista office, on June 14th, 2006. The Complaint itemized several defects. 5. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves. Inspector Nieves conducted a job-site inspection on June 20th, 2006, in the presence of both parties. As a result of his inspection Inspector Nieves issued a written Corrective Work Order on June 21st, 2006, directing Respondent to make several corrections to the Complainants’ home, and to do so within 15 calendar days, which would be a reasonable amount of time for any properly licensed and responsible Arizona contractor to make the corrections. 6. However, as the Inspector further noted in the CWO, Respondent’s license was then suspended for lack of bond, which acted as a bar to Respondent’s performing or subcontracting any of the ordered work until such time as the suspension would be lifted by the Registrar. A check of the Arizona Registrar of Contractors license records reveals that the suspension the Inspector alluded to in his CWO was not lifted until July 26th, 2006. 7. The corrections were never performed by Respondent. As Inspector Nieves testified at the administrative hearing in this matter, he verified this fact from both parties at the time he was preparing to schedule and perform a pre-hearing inspection for the very purpose of checking on the compliance with this issued CWO. Both parties informed him that no corrective work in obedience to his CWO had been performed. Thus no pre-hearing inspection would benefit any purpose, and none was conducted. 8. Complainants and Mr. Bill Mitten, Managing Member of Respondent LLC, testified at the hearing. It is abundantly clear form the evidence that the corrective work has still not been performed by anyone. The parties point the finger of accusation against each other for assigning fault for the uncorrected work. Complainants say that Respondent failed to perform, while Respondents say that Complainants’ actions were not conducive to his accessing the job site to perform the work. 9. Clearly, the greater weight of evidence justly places the fault on the part of Respondent. He did not even manage to have the suspension of his license lifted until July, 2006, long after the reasonable amount of time to perform the corrective work had expired. Any evidence of Complainants’ refusal to allow the Respondent to perform is justified by the Respondent’s incompetent license status. 10. The time for Respondent to step up and properly correct the items in the CWO is long overdue. Those items are: (1) any and all mismatched tile; (2) any and all cracked floor tile; (3) seal grout; (4) any and all counter grout; (6) any and all stucco, and paint to match; (7) any and all window leaks; (8) any and all patio concrete cracks that do not meet applicable standards, and (9) ceiling fan that wobbles while in operation. 11. As a corollary to the CWO the evidence proved that the cracked tiles are likely being caused by the defective condition of the concrete foundation slab, cracks in which were mentioned by the Inspector. Any correction of the tile problem must take this into account. This Respondent and any subsequently performing contractors on this job will be responsible for assuring that the concrete is properly prepared as a sub-surface to accept the tile before the tile is laid. 12. The Complainants’ evidence also proved that in making some effort to correct cracked tile before the filing of this Complaint, Respondent had replaced existing tile with other tiles of the same description, but from a different dye lot. Frequently within the industry, tile of the same description and specification, but from different dye lots, will have some color variation. In seeing to the proper replacement of the tile, Respondent is responsible for assuring that the color matches as closely as possible. It is impossible, however, to judge reasonableness of the color match before the corrective work is performed. 13. Complainants testified to their willingness to reach a resolution of the tile problem, if necessary, in the form of substituting a laminate flooring of comparable price, should the tile correction prove to be unacceptable. The parties are free to explore this as an option, and informal settlement of this issue. 14. The evidence did demonstrate that the parties’ working relationship has deteriorated to a point making it no longer desirable for them to be required to have contact with each other. Complainants testified to their complete lack of confidence in Respondent’s abilities, and their unwillingness to have him return to their house. 15. Notice is taken of the Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, 23, and 3. 3. Respondent violated A.R.S. 32-1154.A.23 by failing to obey the Corrective Work Order within a reasonable amount of time. That Respondent’s license was suspended for lack of bond during the time allotted by the Inspector in his CWO for the work to be performed avails Respondent nothing. The subject license was suspended for Respondent’s failure to maintain a bond required by law. That suspension itself was imposed for the Respondent’s own wrongdoing, and no licensee should be able to derive legal benefit from his own wrongdoing. 4. Respondent clearly violated A.R.S. 32-1154.A.3, by violating A.A.C. R4-9-108, the Workmanship Standards licensed contractors are required to follow. The evidence proved that the CWO items were defects in the construction in violation of the cited rule and statute. 5. There is no sufficient evidence of any violation of A.R.S. 32- 1154.A.7, independent of the violations already concluded.

RECOMMENDED ORDER In view of the foregoing it is hereby recommended that Respondent’s Class B License number 185800 shall be suspended until such time as the Registrar of Contractors receives written proof that Respondent has caused another appropriately licensed contractor to properly accomplish the corrective work set forth in Inspector Nieves’s June 21st, 2006, Corrective Work Order. It is further recommended that if the Respondent causes another properly licensed contractor to properly comply with the CWO, on or before the effective date of this Order (40 days after the date of service shown the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint S06-0212 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, December 20th, 2006.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488