ALJDEC decisions subject to certification as final

06F-Y0244-ROC · Registrar of Contractors · 2007-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21st, 2007; 9:00 a.m. APPEARANCES: Complainants, Mr. Anthony and Ms. Lisa Williams, were represented by Mr. David J. Hossler, Attorney-at-Law. Respondent ARE Group, LLC, was represented by Mr. Robert M. Cook, Sr., and Mr. Kip M. Micuda, Attorneys-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by 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, ARE Group, LLC, is, and during all time material hereto was, a contractor, licensed by and doing business in the State of Arizona, holding Class KB-02 License number 189793. 2. Complainants, Mr. Anthony and Ms. Lisa Williams, a married couple, purchased their new residential home in Yuma, Arizona, pursuant to a written purchase and sale contract entered into between these parties on July 15th, 2004. The purchase price was $325,000, subject to later change orders which might affect the price. An invoice printed on Respondent’s letterhead for later upgrades fails to display Respondent’s Arizona license number preceded by “ROC.” (See: Comp.’s Ex. 5). 3. Following construction of the home Complainants discovered several items of defective workmanship and informally attempted to have them corrected prior to the filing of this administrative Complaint. Not seeing the results they wished, Complainants filed the instant Complaint in the Arizona Registrar of Contractors on or about May 23rd, 2006. 4. The Complaint was assigned to Registrar of Contractors Inspector Geoff Galgan. Inspector Galgan conducted a job site inspection and issued a written Corrective Work Order as a result. The CWO was dated July 14th, 2006, and ordered the Respondent to make several corrections to the work. The CWO allotted 15 calendar days for the corrections to be made, which was a reasonable amount of time. 5. At the conclusion of the allotted time Respondent had failed to make many of the corrections, therefore the Complainants requested an administrative hearing. At the hearing Inspector Galgan testified. He had conducted a pre-hearing job-site inspection shortly before the hearing, and testified as to his findings at that inspection, relative to the items he had previously ordered in writing to be corrected. 6. Inspector Galgan found that the following items (enumerated corresponding to the Complaint Items) still had not been corrected or had not been adequately corrected: (#1) nail holes at pantry door; (#4A) missing trim had been installed around gas fire valve, but was not flush, and still needed correction (the Complaint does not allege improper location); (#4B) uneven tile at fireplace still had not been adequately corrected as to one vertical tile; (#5B) shower seat is backwardly pitched and has not been corrected; (#5C) some tile remains missing, and must be properly installed; (#6) the wall in the master bathroom still bows out, and must be properly corrected; (#7) ceiling fan pull chain needs to be properly installed (there is insufficient evidence to conclude that Complainants removed the chain); (#9C) there remains an area approximately 3”x3” at the weep screed missing stucco; (#15) some areas at the back door are still missing paint; (#18) plywood left at the stem wall uncorrected; (#27) two areas of gaps at electrical switch plates needed correction; (#28) cracked tile at the bar still needs proper correction; (#29) there remain some areas around the kitchen floor tile missing grout; (#30) there remain some areas at the entry to the game room missing grout, and (#42) some missing weather stripping to the front double doors remains missing. 7. The alleged color mismatch of the granite countertops in the bathroom was not below workmanship or industry standards or tolerances for color variation. 8. There was much evidence given by both parties as to the alleged failure of Respondent to install a well house or pump house. The contract calls for all work to be in conformity to the community’s Covenants, Conditions and Restrictions, and the applicable CC&Rs do mention requirements for well houses. The parties’ dispute whether, pursuant to the contract, Respondent was obligated to construct a well house or pump house. It appears that the parties have a good faith contract dispute as to the meaning of their contract which would be more properly resolved, if at all, in a civil court of competent jurisdiction. 9. The greater weight of evidence, including the Inspector’s testimony supports the finding that Respondent has failed to correct the items listed in Finding of Fact #6. Respondent LLC’s Member, Mr. Bill Walshe, testified and repeatedly contended at the hearing that he should be given an opportunity to remedy these conditions. However, he had filed a Written Answer to the Citation and Complaint averring that all items in need of correction had been corrected, and at the hearing was unsure of what needed to be corrected. At one point he conceded some items had not been corrected. It did not appear that a reasonable person would place much confidence in his efforts if he were allowed to return and correct the items listed by the Inspector. There is insufficient evidence of any denial of reasonable access to Respondent which would have excused his failure to make the corrections. Respondent should cause another properly licensed contractor to properly correct the items listed in Finding of Fact #6. 10. Notice is taken of 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 (namely A.A.C. R4-9-108, Workmanship Standards); and 13 (namely A.R.S 32- 1124.B). 3. Respondent failed to make the corrections listed in the Inspector’s Corrective Work Order, and there is no evidence of any valid justification for the failure. Respondent violated A.R.S. 32-1154.A.23. 4. The workmanship defects found by the Inspector constitute a violation of A.A.C. R4-9-108, and therefore also of A.R.S. 32- 1154.A.3. 5. The absence of the Respondent’s license number preceded by “ROC” on the invoice constitutes a violation of A.R.S. 32-1129.B, and therefore also of A.R.S. 32-1154.A.13. 6. There is no evidence of any violation of A.R.S. 32-1154.A.7 independent of the violations already concluded. 7. The parties’ dispute over the well house or pump house is a good faith contract dispute which should be more properly resolved, if at all, in a civil court of competent jurisdiction. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class KB-02 License number 189793 be suspended until the Registrar receives written proof that Respondent has caused another appropriately licensed contractor(s) to properly correct the defective workmanship items listed in Finding of Fact #6. The issue of the pump house or well house is a good faith contract dispute which should be more properly resolved, if at all, in a civil court of competent jurisdiction. It is further recommended that if the Respondent properly causes the corrective work to be performed on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint Y06-0244 shall be closed. It is further recommended, in addition the above-provide discipline, if any, that Respondent’s license should be placed on administrative probation for a period of 180 days from the effective date of this Order for the violation of A.R.S. 32-1129.B., and Respondent be admonished that future violations of this requirement may subject the license to more severe discipline. 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, May 24th, 2007.

______________________________________ Grant Winston 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