ALJDEC decisions subject to certification as final

06F-T1218-ROC · Registrar of Contractors · 2007-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Joe Tarver. The Respondent appeared through its attorney, Eric Nadler. ADMINISTRATIVE LAW JUDGE: M. Douglas

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. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. The Respondent constructed a new residence for the Complainant. 3. The Complainant was extremely dissatisfied with the Respondent’s workmanship and failure to correct its work to his satisfaction despite his demand that it do so. 4. When the Respondent failed to comply with the Complainant’s demand for corrective work, the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. The Complainant’s Complaint is eleven (11) pages long with attachments and contains over seventy (70) itemized Complaints. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a five (5) page written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The Complaint was amended on February 28, 2007, to include the new items set forth in the Complainant’s written communication of February 19, 2007. 8. There was no dispute that a substantial portion of the items set forth in the Corrective Work Order had either been corrected to within applicable industry and workmanship standards or had been accepted by the Complainant. 9. Credible testimony and evidence, presented at hearing, established that while a large portion of items set forth in the Complaint and the Amendment have been corrected there were a substantial number of items still at issue. 10. Item 1. The privacy wall in the Complainant’s backyard and retaining walls for east and west side of the yard were still at issue. The assigned Agency Inspector found: “The rear east yard is acceptable. Mike Jones agreed to build a retaining wall at the east side of the house and to ensure positive drainage away from the house and retaining wall foundations.” 11. The issue regarding the construction of the walls around the Complainant’s backyard, including the retaining walls, and providing positive drainage from the yard, is the Agreement to provide sufficient room for the construction of the Complainant’s therapeutic swimming pool.

12. Credible testimony and evidence, presented at hearing, established that the parties’ Purchase Agreement was contingent upon the ability to construct the therapeutic swimming pool in the Complainant’s backyard. A diagram of the swimming pool giving the pool’s dimensions was attached to, and incorporated in, the parties’ Contract. 13. Credible testimony and evidence, presented at hearing, established that the construction of the walls as privacy walls and the presence of the drainage swell (identified as a “berm” by the Complainant and a “grade change” by the Respondent) intruded upon the minimum amount of space required for the construction of the swimming pool. 14. After the issuance of the Inspector’s finding regarding item No. 8, the Complainant caused an existing wall and drainage swell to be removed and replaced with a retaining wall. The Complainant now seeks unspecified restitution for his action. 15. Credible testimony and evidence, presented at hearing, established the original swimming pool company has gone out of business and the swimming pool has not yet been built. There was insufficient credible evidence presented to support a finding that the Complainant’s actions in replacing the wall and drainage swell prior to the administrative hearing were reasonable and justified. Credible evidence or record is insufficient and fails to support a finding regarding the amount of restitution for the Complainant’s cost of removing the privacy wall and drainage swell and installing the retaining wall. 16. The credible evidence of record is insufficient and fails to support a finding that any further corrective action is required to the Complainant’s privacy walls and drainage in the Complainant’s rear yard. 17. Item 2. The carpet issue. Credible testimony and evidence, presented at hearing, established the carpeting in the Complainant’s residence is soiled; paint stained and has noticeable traffic patterns despite the undisputed fact that the Complainant has not yet occupied the residence. 18. Credible testimony and evidence, presented at hearing, established the Complainant’s wife is allergic to various cleaning materials and the Respondent’s proposed method of correction would have involved cutting the tips of the damaged carpeting. The Complainant’s action in refusing to allow the cutting of his new, unused carpeting is found to be reasonable and justified. The Respondent shall properly remove and replace the damaged carpeting. 19. Item 3: The stains on the patio and garage floor. There was no dispute that there are unacceptable stains on the garage and patio floors. There was also no dispute that the Complainant does not agree with the Respondent’s proposed method of correction on the patio floor and that the Respondent declined to correct the garage floor unless it could use the same method of correction on the patio. 20. Credible testimony and evidence established the Registrar of Contractors does not specify methods of correction; instead, the Registrar of Contractors leaves the choice of the method of correction up to the licensed contractor with the provision that the chosen method of correction must correct the construction deficiency to within applicable industry and workmanship standards. 21. Credible testimony, presented during the hearing, established the Respondent’s chosen method of correction is a normal industry method of correction for this type of deficiency and may correct the problems to within applicable industry standards. However, there was no showing, with exception of the Complainant refusing to the chosen method of repair for the patio, that the garage floor could not be corrected. These are two distinct areas. The Respondent shall properly correct both areas. If the Complainant elects not to have patio area corrected that election does not excuse the Respondent from properly correcting the staining on the garage floor. The Respondent shall properly correct the staining on the garage and patio floors. 22. Item 4. The utility door. Credible testimony and evidence, presented at hearing, established that the utility door operates within applicable industry tolerances. No corrective work by the Respondent was shown to be necessary. 23. Item 5. The granite bullnose. Credible testimony and evidence, presented at hearing, established the Complainant paid approximately $200.00 more for the granite bullnose in his residence than one of his neighbors. However, there was no credible evidence that the Respondent either knew or should have known what the material/supplier subcontractor was charging for the granite bullnose or whether the difference in cost was based upon differences in amount, color, or simply a difference in time of ordering. No corrective action by the Respondent was shown to be necessary. 24. Item No. 7. The Minka exterior lights. There was no dispute that the Respondent installed a different brand and type of exterior lighting on the Complainant’s residence. Credible testimony and evidence established the local building authority would no longer allow the type of exterior lighting selected by the Complainant to be installed. Credible testimony and evidence established the parties’ contract allows the Respondent to substitute materials so long as there is no diminishment in the value of the property. The credible evidence of record is insufficient and fails to support a finding that the value of the Complainant’s residence was reduced by the change in the type of exterior lighting. No correction by the Respondent was shown to be necessary. 25. Item No. 8. Coffered ceilings There was no dispute that there are no coffered ceilings in the Complainant’s residence. However, the credible evidence of record is insufficient and fails to support a finding that the Respondent was required to install coffered ceilings in the Complainant’s residence. No corrective action by the Respondent is found to be necessary. 26. Item No. 9. The color of the bathroom fixtures. There was no dispute the Complainant wanted white bathroom fixtures for his residence and the Respondent installed light beige fixtures in the Complainant’s residence and throughout the housing development. The color of the plumbing fixtures is not specified in the parties’ written Agreement and there was no credible evidence that the value of the Complainant’s residence had been diminished by the use of light beige fixtures as opposed to white fixtures. No corrective action by the Respondent was shown to be necessary. 27. Item No. 10. The waterline to the Complainant’s garage. There was no dispute that there is no waterline in the Complainant’s garage. However, the credible evidence of record is insufficient and fails to support a finding that the Respondent was required to install a waterline in the Complainant’s garage. No corrective work was shown to be necessary. 28. Item No. 11. Pot shelves. There was no dispute that the Complainant does not have pot shelves in his residence. However, the credible evidence of record is insufficient and fails to support a finding that the Respondent was required to install pot shelves in the Complainant’s residence. No corrective work by the Respondent was shown to be necessary. 29. Item No. 12. Holes in carpet in bedroom closet. Credible testimony and evidence, presented at hearing, established there are two holes in the carpet in a bedroom closet. The Respondent shall properly replace the carpeting in the bedroom closet. 30. Item No. 13. Termite treatment. There was no dispute that the Complainant paid over $1,000.00 for an upgrade in the type of termite treatment to be applied to and around his residence. There was no dispute that the termite subcontractor applied the lesser cost termite treatment around a concrete patio. While the entire residence and patio are protected against termites to within applicable industry standards, the Complainant did not receive the full value for his upgrade. The Respondent shall, as restitution, refund to the Complainant the entire sum of the cost of the termite upgrade in the total sum of $1,050.00. 31. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of his new home are understandable, construction work, such as that at issue herein, is not a perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship, prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to complete necessary remedial work. 32. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (23) (Failure to take appropriate corrective action) and (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class B- License be suspended until the Registrar of Contractors receives proof that the Respondent has properly replaced the carpet in the Complainant’s residence, has properly corrected the stained garage floor and the stained patio floor and, as restitution, has properly paid the Complainant the sum of $1,050.00 for the termite treatment upgrade.. It is further recommended if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. 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 this 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 the certification.

Done this day, May 18, 2007.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488