ALJDEC decisions subject to certification as final

07F-M1261-ROC · Registrar of Contractors · 2007-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2007

APPEARANCES: Complainant was represented by his attorney, Joyce Stovall and Respondent was represented by its attorney, Mark Erpenbeck. 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 rebuild his home, which had been destroyed in a fire. Complainant contends there are certain deficiencies in the work performed and/or materials provided by Respondent. Respondent does not dispute that remedial work is necessary and asserts that it has attempted to complete the corrective work but has been denied access by Complainant. The facts surrounding this claim are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainant averred that the only remaining issues to be determined at the hearing involved specified issues of the roof installation and the drywall. All other issues, enumerated in the filed Complaint, had either been resolved or accepted by Complainant prior to the scheduled hearing.

3. Subsequent to filing the instant Complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar of Contractors’ inspectors, who appeared at the instant hearing and provided testimony. On or about February 16, 2007 the inspector convened a jobsite inspection.

4. The inspector testified regarding his findings at the aforementioned jobsite inspection. He did find a wave in the roof and was unsure whether or not there was more than one hump in the roof or whether a singular hump was creating the effect of additional humps in the roof. The hump or humps in the roof were found to be a framing issue and probably related to a problem with the installation of a singular truss.

5. Apparently, there had been broken tiles on the roof but same had been repaired prior to the inspection.

6. The inspector indicated that he was not shown any evidence of a roof leak at either the original jobsite inspection or at a pre-hearing inspection, which had been performed just prior to the date of the instant hearing.

7. Complainant had raised an issue regarding the installation of the roofing paper underneath the tiles and several tiles were removed to show the inspector the paper underneath. He could find no deficiency in the paper installation. It should be noted that the only paper type issue that was brought to the attention of the inspector, was the paper on the roof.

8. The inspector indicated that he found crooked drywall seams in specified areas inside the home. In addition, he observed drywall work around windows which was out of plumb.

9. It should be noted that Complainant’s attorney was at the original jobsite inspection and thus, would have been able to also advise the assigned inspector regarding the issues of the filed Complaint.

10. The inspector testified that both Respondent and Complainant appeared to be cooperative at the jobsite inspection. Following the original jobsite inspection, the inspector issued a Corrective Work Order (“CWO”), dated February 22, 2007. The CWO directed Respondent to correct the hump in the roof and accomplish the necessary drywall repairs.

11. It is important to note that prior to the date of issuance of the aforementioned CWO, Complainant filed a document with Registrar of Contractors, dated February 16, 2007 ( the same day that the jobsite inspection took place), indicating that Complainant had no confidence in Respondent and requested that the matter proceed directly to hearing.

12. Steve Kowalski (“Steve”), Respondent’s president, appeared at the hearing and presented testimony. The salient portions of his testimony included the following:

a. He admits there is a hump on the roof and Respondent and its framer agreed to correct the hump, in accordance with an engineer’s recommendations. b. Immediately after the Complaint was received, he contacted the subcontractors in question to resolve the Complaint. Apparently, the Complaint was filed on or about December 12, 2006 and on December 13, 2006 Respondent was on Complainant’s property, with the roofing subcontractor, attempting to resolve the roof issues. c. Respondent made numerous attempts to work on all of the issues of the filed Complaint, before and after the jobsite inspection by the inspector, and Complainant continually denied access for said purpose. According to Steve, Respondent was ready, willing and able to make the repairs, but was not given any opportunity by Complainant. d. Not only did Respondent send numerous written communications to Complainant to perform the corrective work but Steve also made verbal communications in this regard. e. Steve does not dispute the fact that there are “wandering” drywall seams in specified areas of the interior of the home, that there are bowed walls, and that there are uneven drywall margins, along with missing drywall.

13. Complainant testified that he had made numerous complaints to Respondent, during the course of the construction project, in regard to the roof structure issue. He contends that he had three (3) other roofers look at the work performed and they agreed that it was unsatisfactory. The roof issue and the negative feedback from others in the industry apparently caused Complainant to lose confidence in Respondent’s ability to correct the problem, especially in light of the fact that a truss was probably going to be cut, in order to relieve the roof hump issue.

14. Complainant contends that Respondent has performed other remedial work in the past and generally he was not satisfied with these repairs. He stated that he just lost total confidence in Respondent and therefore, did not want Respondent to perform any further work on his home. At one point in the hearing, Complainant indicated that even if Respondent agreed to perform remedial work in accordance with the direction of an expert chosen by Complainant, he still would not allow Respondent to perform such remedial work.

15. Evidence of record showed that Complainant filed a companion civil court action against Respondent, seeking monetary damages for the work performed on the construction project at issue herein.

16. The record presented at the hearing demonstrated deficiencies in Respondent’s work on the project, as manifested by the hump or humps in the roof, “wandering” drywall seams, bowed walls, missing drywall, and out of plumb drywall. Nevertheless, the evidence of record is replete with numerous attempts by Respondent to correct the construction deficiencies cited by Complainant. These attempts commenced immediately upon the filing of the Complaint and continued basically up to the actual date and time of the instant hearing. All of Respondent’s offers to make repairs were effectively rebuffed by Complainant.

17. Notwithstanding the foregoing finding of construction deficiencies attributable to Respondent, 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.

18. Complainant elected to file this Complaint with the Registrar of Contractors and pursuant to said election, he should be required to allow the Registrar’s normal process to be followed, especially in regard to giving a contractor a reasonable opportunity to make corrections prior to a jobsite inspection or, at least, to perform remedial work set forth in an Agency directive. The instant record failed to demonstrate any health, safety or competency reasons why Respondent should not have been allowed to correct the construction deficiencies. The salient facts and circumstances presented in the instant case militate against any finding of violations by Respondent of the spirit and intent of the State’s contracting laws.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (M07-1261), together with the Complaint upon which it is based, be dismissed. 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, September 21, 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