ALJDEC decisions subject to certification as final

07F-M0270-ROC · Registrar of Contractors · 2007-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2007

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Kenneth McNaughton. 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 verbal agreement, Complainant retained Respondent to perform specified work on the construction of a remodel and addition project to his home. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainant indicated that the issues of concrete splatter on the exterior walls and exposed roof sheeting nails had been resolved, thereby limiting the instant hearing to only the issues of the level of the concrete in the bedroom, the finish on the patio concrete slab, the unfinished wall sheeting on the roofline, the unfinished roof, drywall damage, and paint damage in the bedroom.

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

a. Complainant was shown to have served as a qualifying party on several contractors’ licenses. b. The filed Complaint in this matter states that Respondent was hired on an hourly basis, with payment at a rate of $100.00 per hour. c. Complainant testified that the concrete placed by Respondent in the new bedroom area is out of level by 1 ¼ inches in ten (10) feet. d. Complainant stated that the finish on the concrete patio is very rough, there is extensive cracking and there is an area where there are two (2) different colors in the concrete, where the exterior concrete abuts the interior concrete work. e. Complainant testified regarding holes in the area where the roof meets two different patio covers. According to Complainant, Respondent attempted to repair these holes, but there is still roof leakage in these areas. f. Complainant indicated that bird blocking is missing in a couple of areas. g. As a direct result of roof leakage, Complainant claims that the drywall on a patio cover has been damaged and the paint finish on the interior wall of the bedroom has also been damaged, due to water intrusion. h. After the receiving the filed Complaint, the matter was assigned to one of the Registrar’s inspectors, who conducted a jobsite inspection. The inspector appeared at the instant hearing and testified in regard to his findings at the original jobsite inspection, as well as the pre-hearing inspection. i. The inspector testified that there are two (2) holes, where the patio roofs meet the roof for the home. He also indicated that there are some missing bird block materials and not having said material could allow birds or other vermin to get into the attic of home. j. According to the inspector, the concrete in the bedroom is not within Registrar of Contractors’ standards for level. He also found the finish on the patio slab to be rough and unsightly. k. After concluding his jobsite inspection, the inspector issued a Corrective Work Order (“CWO”), requiring Respondent to accomplish specified remedial work within a stated period of time. l. Cody Howard (“Howard”) appeared as a witness for Complainant. Howard was shown to be a contractor also and was a partner, with Complainant, on the project in question. Howard was shown to have been on the project on a very regular basis. m. Howard confirmed that Respondent was merely hired on a time and material basis, only to be paid for the work that he performed. n. According to Howard, Respondent advised him that the concrete project was much larger than he could handle and therefore, additional help would need to be supplied for this aspect of the project. In addition, Howard admits that Respondent advised that he was not a skilled concrete finisher and would need the additional help to be skilled in said area. o. Howard testified that he told Respondent not to worry about the final finish of the concrete, just to “get it as close as you can.” p. Kevin McNaughton (“Kevin”) appeared at the hearing and presented testimony for Respondent. Kevin is employed by Respondent and performed work on the project in question. He testified that all of Respondent’s work on the project was directed by Complainant and/or Howard and they, not Respondent, were acting in the capacity of general contractor for the project. q. Kevin stated that he advised Complainant and Howard that the concrete project was too much for him and his crew. He indicated that Complainant or Howard advised they would obtain extra help that would be skilled as concrete finishers. r. According to Kevin, although Complainant supplied two extra helpers for the concrete work at the time of the concrete placement, they were unskilled laborers and not concrete finishers, thereby leaving Kevin, alone, to do the finish work for the concrete, as best he could. s. Respondent admits that it did not install the bird blocking material, but indicates that he was terminated from the project before all of the roof related work was completed. According to Respondent, the people Complainant hired after him should have installed the bird blocking, since he was only working on an hourly basis and had not yet completed this portion of the work. t. Evidence of record showed that when Complainant paid Respondent his final check for the work performed on the project, $300 was agreed between the parties to be withheld by Complainant, in order to allow Complainant to pay for the costs of placing a leveling compound on the bedroom floor. According to Respondent, Complainant advised Respondent that his flooring contractor indicated he would fix the floor with the leveling material, for the $300.00. u. Complainant testified that the leveling material failed to work as intended and now he wants Respondent to correct the out of level floor.

4. The weight of the credible evidence of record was sufficient to support a finding that the following substandard and unacceptable workmanship is attributable to Respondent:

a. The roof water leakage along with the two holes where the patio covers meet the roof for the house structure. b. The drywall damage sustained on the patio roof cover and the interior of the bedroom wall.

5. It is determined and held that the agreement between the parties that Complainant would withhold $300.00 from Respondent’s last check, in order to have someone else work on leveling out the bedroom floor, constitutes an agreement of accord between the parties on this issue, effectively relieving Respondent of any further responsibility on this item.

6. In regard to the finish on the concrete patio, the evidence of record supports a finding that Respondent advised Complainant and/or Howard that not only did he not have a large enough crew to properly perform the concrete placement, but in addition he also was not a skilled concrete finisher. Notwithstanding the verbal disclaimer from Respondent, the evidence presented showed that Complainant elected to pay Respondent to place the concrete. In addition, Complainant was to supply additional skilled workers for said work and failed in this regard, leaving only Kevin to finish the large concrete project by himself. Under all of the facts and circumstances presented, Complainant is estopped to complain of the finish on the concrete patio.

7. Since Respondent was terminated before all of the roof work was completed and he was only hired on an hourly labor basis, any bird blocking that has still not been installed would not be Respondent’s responsibility.

8. Respondent’s failure to correct the holes in the areas where the patio covers meet the roof for the home and the related water damage constitutes a failure to comply with all of the requirements of the CWO.

9. 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 the absence of any prior disciplinary sanctions. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation 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 (23), (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 4(a) and 4(b). 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 above-provided penalties, if any, that Respondent pay the sum of $100.00 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 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, April 23, 2007

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors 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