ALJDEC decisions subject to certification as final

07F-A0027-ROC · Registrar of Contractors · 2007-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2007 APPEARANCES: Complainant was represented by his attorney, David Shapiro and Respondent appeared through its owner and qualifying party, Dan Ryan (“Dan”). 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 accomplish specified framing and siding installation work on his new home construction project. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

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

a. Complainant was acting in the capacity of owner/builder on this project. He contacted Respondent to give him a bid on the framing and siding work. On or about December 16, 2005 Respondent provided Complainant with a second bid for the requested work. The bid was accepted and Respondent performed the framing work, along with the siding installation for the project, completing the work sometime prior to June 2006. b. Evidence of record showed that the official records of the Registrar of Contractors indicate that Respondent was suspended for lack of bond from November 6, 2005 through May 30, 2006 (the entire period during which Respondent bid and worked on this project). c. The plans and specifications for the project were prepared by a company retained by Complainant. The plans, which were approved by the local building authority, showed the details for the trusses, along with the pertinent truss calculations. The approved plans showed that the trusses were to be supplied by Triangle Truss, Inc. (“Triangle”). d. Uncontroverted evidence of record showed that the trusses installed by Respondent were not supplied by Triangle. Respondent used trusses manufactured by Arizona Arches and Lumber (“Arizona”). Notwithstanding the change in the supplier of the trusses, there was no dispute that the local building authority approved the truss installation. e. Respondent agreed to “cut-in” openings for 5 skylights at a cost of $1,250.00. Complainant paid this portion of the contract in full. He testified that he hired another individual to install the “cut-in” for the master bathroom, due to the fact that Respondent failed to install this “cut-in.” Complainant does not know whether or not Respondent provided the other “cut-ins,” since the ceiling area in question has drywall installed with no skylights. f. Complainant contends that there were deficiencies in the siding installation performed by Respondent, as manifested by nails that were sunk too deep into the siding, broken siding boards, and wide joint gaps. Complainant hired another individual (the same person that cut-in the master bathroom skylight) to fix the siding and claims entitlement to restitution for these expenses. g. Complainant testified that the person who repaired the siding and installed the master bathroom skylight “cut-in” is not a licensed contractor. h. Dan testified that he never uses Triangle in his business and that he advised Complainant from the outset of their contractual arrangement that he would not be using Triangle for the truss installation. According to Dan, the trusses he supplied were equal or better to the trusses from Triangle. Moreover, he indicated that the trusses from Arizona are designed with the same engineering as the ones from Triangle. i. Regarding the siding issue, Dan testified that after completing the installation, he did a “walk-through” with Complainant and replaced every board that Complainant was unhappy with. Once the remedial work was completed, he and Complainant did another “walk-through,” in order to see if Complainant was satisfied,```````` and Dan testified that Complainant indicated everything was acceptable, after the remedial work was completed. j. After the final “walk-through” for the siding work, Dan never heard any further complaints from Complainant, despite the fact that Respondent was working on another project on the same street. k. Dan agrees that Complainant paid Respondent for the “cut-in” of five (5) skylights. According to Dan, four (4) were completed. The fifth skylight “cut-in” was not completed, due to the fact that Complainant failed to move the HVAC and plumbing that was in the way of performing the “cut-in” work. Dan testified that he asked Complainant on several occasion to move the HVAC and plumbing, but the work was never accomplished by Complainant. Dan further testified that he made three separate trips to the project to install he final “cut-in” and each time found that the project was not ready for the “cut-in” procedure. l. Dan contends that his expenses in returning to the project three (3) times, in order to perform the final “cut-in” for the last skylight, cost him approximately the same amount of money as Complainant paid for the 5th skylight “cut-in.” m. Dan claims entitlement to “extras,” which Complainant has not paid for, as of the date of the instant hearing. Notwithstanding Dan’s disagreement with Complainant’s claim for restitution for the costs incurred in paying the unlicensed contractor to repair the siding and install the master bathroom skylight “cut-in,” Respondent issued a document showing that it deducted Complainant’s claim for the unlicensed contractor expenses from Respondent’s claim for payment on the extras. n. The parties have not been able to resolve their money dispute. o. Respondent’s office manager appeared at the hearing and testified regarding the issue of Respondent’s bond suspension, at the time of the project in question. She testified that Respondent’s bond company made an error and had canceled the wrong bond, when they had received an instruction to cancel a specified bond and canceled Respondent’s bond by mistake. She indicated that Respondent had no notice of this error until such time as it was raised in the instant Complainant. p. Dan testified he had no idea his license was not in good standing when Respondent worked on Complainant’s project.

3. Construction work, such as that at issue herein, is not a perfect science and 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 should be given a reasonable opportunity to complete necessary remedial work. If Complainant was still not satisfied with the siding installation, after the above-described remedial work was performed by Respondent, then he should have notified Respondent, in writing, to return to the project. The weight of the credible evidence of record is sufficient to support a finding that Respondent was never given adequate notice to return and perform corrective work on the siding, before the unlicensed contractor performed said work. Under all of the facts and circumstances presented herein, Respondent’s work on the siding issue is not found to be a violation of the spirit and intent of the charged sections of the State’s Contracting laws.

4. Complainant’s failure to move the HVAC and plumbing for the master bathroom skylight “cut-in” effectively prevented Respondent from performing this work. No violation of the State’s Contracting laws is found in this regard.

5. The trusses installed by Respondent are found to be equal or better to the trusses set forth on the building approved plans and specification. Moreover, Respondent’s truss installation passed the inspection by the local building authority. The fact that Complainant was not apprised of the change until three (3) days before the applicable inspection, does not constitute a violation of any of the charged sections of the State’s Contracting laws. Based on the foregoing, it is determined and held that Respondent did not violate the State’s Contracting laws in regard to the truss issue.

6. The official records of the Registrar of Contractors shows that Respondent was suspended for lack of bond during the time period in question herein. The evidence presented at the hearing showed that Dan did not know of this suspension and the suspension was due to an error by the bonding company. Evidence of record showed that once the error was brought to Respondent’s attention, the problem was resolved, resulting in the reinstatement of the license. Since the official records of the Registrar of Contractors continue to show that Respondent was suspended during the period of time in questions, these records must necessarily support a finding of a technical violation of the applicable charged section of the State’s Contracting laws. Nevertheless, the facts presented herein show extreme mitigating circumstances, which militate against the imposition of any disciplinary sanctions for this violation.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (18).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation (no. A07-0027), together with the Complaint upon which it is based, be deemed closed. 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, December 3, 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 ___________________________

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