ALJDEC decisions subject to certification as final

07F-G1626-ROC · Registrar of Contractors · 2008-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its senior customer relations manager, Greg Lowes (“Lowes”). 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 purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Although there were numerous issues set forth in the filed Complaint, Complainant averred at the outset of the scheduled hearing that her Complaint was now limited to only the issues of the cable outlets, caulking, baseboards, landscaping, grading, plumbing, gable area of roof, bathroom lights, and the railings. During the course of the hearing, she added the issue of the sliding glass door wall.

3. Complainant’s testimony included the following:

a. Initially, Complainant was unsure that the cable outlets were installed in certain rooms. However, she later discovered that they were behind the drywall. She testified that the cable covers have not been installed in several areas and the box or material behind the wall for attaching the cable covers is either missing or broken. b. Originally, Complainant had an issue with the caulking around the baseboards. She contends that it was messy and unsightly. The caulk was removed by Respondent, however, Complainant asserts that in removing the caulk Respondent gouged and damaged the baseboards. c. Complainant testified that the finish on the baseboards was never properly completed by Respondent. According to Complainant, the finish is very rough, shows paint drips, cuts, and when painting was performed, carpet stuck to certain areas of the baseboards. Although Respondent attempted remedial work at one time on the baseboards, she claims the remedial efforts were unsatisfactory. Complainant has since removed all of the baseboards from her home. d. Complainant testified that Respondent did not provide her with certain landscape plants. She claims they shorted her seven (7) five gallon plants and five (5), one gallon plants. e. According to Complainant, her side yard is too low, stays muddy too long from the rain water run-off from the roof and the dirt is too high, up against the foundation. In addition, the crushed granite in the front side yard is all washed out. f. Complainant showed a photograph of paint residue on a rock landscape area, where she claims Respondent’s painters cleaned their equipment. g. Complainant contends that Respondent used unlicensed plumbers on the project. According to her testimony, the individuals who were performing certain plumbing work, told her they were not licensed but were working as employees of Respondent. It was unclear what work these individuals were doing and whether it was incidental and supplemental to other work being performed by Respondent. h. On the gable roof area, where a new vent has been installed, Complainant claims that the new stucco fails to match the adjacent existing stucco. i. Complainant claims she still has broken tiles on her roof and showed a photograph which reveals at least one broken tile. j. Complainant claims that the roof flashing in a specified area looks bad. k. According to Complainant, three lights in the bathroom turn-off on their own, after a specified period of time. l. Complainant testified that paint touch-up on a specified exterior railing fails to properly match the rest of the paint. In addition, she asserts that the railing is scratched in several places and there are paint chips in said areas.

4. After the Complaint was filed with the Registrar of Contractors, it was assigned to one of the Agency’s inspectors, who conducted a jobsite inspection. The inspector appeared at the hearing and provided testimony. The salient parts of the inspector’s testimony included the following:

a. At the jobsite inspection, he was advised by Complainant that many of the issues on the Complaint had been corrected prior to the inspection, including the cable outlets, the caulking, the baseboards, the landscaping, and the grading. Thus, he did not look at most of these issues and did not order any corrections on same. b. At the hearing he did indicate that it would be poor workmanship if carpet stuck to baseboards. According to the inspector, the baseboards were already removed at the time of his inspection. c. At either the original jobsite inspection or the pre-hearing inspection, he observed the side yard grading and stated that same was within proper standards for yard grading. In addition, he indicated that Respondent is not responsible to install roof gutters to prevent excessive water from flowing off the roof in said area. He did not find anything wrong with the grading up against the foundation of the home. d. At the hearing, the inspector was shown a photograph of the gable end in question and opined that from the picture it did not appear to be a close match on the stucco repaired areas. e. He did not see anything wrong with the roof flashing shown in a photographic exhibit, but he did see a broken tile in the photo. f. Regarding the exterior railing, he did observe some mismatched paint touch-up and scratches. g. Subsequent to concluding his jobsite inspection, the inspector issued a Corrective Work Order, requiring Respondent to accomplish specified remedial work within a stated period of time. At the time of the pre-hearing inspection, he determined that Respondent had complied with the Corrective Work Order directives. h. He testified that he observed the baseboards already removed from the walls and stacked in a pile at the original jobsite inspection and the pre-hearing inspection. i. In regard to the gasket on the sliding glass door, in his opinion it was within minimum standards, despite a small gap in one area. He did not find such a gap to be unusual.

5. Moses Valdez (“Valdez”), Respondent’s customer service representative, appeared and testified for Respondent. According to Valdez, he observed that Complainant had other people perform work on the side and rear yards, including adding dirt to said areas. He also testified that if someone else works on the grading in said areas, it voids Respondent’s warranty in said area.

6. Valdez testified that Respondent sent its roofer back to Complainant’s home to investigate and replace any broken roof tiles. The roofer advised him that the broken tiles had been replaced.

7. Lowes testified that it is normal for the bathroom lights in question to turn off after an extended period of time. In this regard, he presented documentary evidence showing that the lights in question are thermally protected to turn off, if there is overheating of the lamps.

8. The weight of the evidence of record was sufficient to support a finding that the following constitute construction deficiencies attributable to Respondent, which require remedial work:

a. Broken roof tiles on the roof b. Mismatched paint touch-up on the exterior railing, as well as paint chips. c. Cable outlets are not a finished installation. d. Complainant did not receive all of the promised landscape plants. She was shorted on seven (7) five gallon plants and five one (1) gallon plants. e. There is paint residue in a specified area of the crushed granite landscape. f. The stucco repair on the gable, wherein the vent was replaced, fails to adequately match the texture of the adjacent existing stucco. g. The paint touch-up on the exterior railing fails to adequately match the existing paint and there are paint chips and scratches on the railing.

9. Although the workmanship on the baseboards was shown to be deficient, as manifested by paint drips, gouges, and carpet fiber material stuck to the wood, by virtue of removing all of the baseboards from the home, Complainant effectively prevented Respondent from performing further corrective work on this issue.

10. All other enumerated items of the Complaint, presented at the instant hearing, were either corrected, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

11. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed not only a prior disciplinary sanction of probation but also sixteen (16) matters that had been closed as “resolved, settled, withdrawn” after the issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 8(a) through 8(g). It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. 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, March 31, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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