ALJDEC decisions subject to certification as final

07F-P0119-ROC · Registrar of Contractors · 2007-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 6th, 2007; 1:30 p.m. APPEARANCES: Complainants, Mr. Thomas and Ms. Helen Tucker, represented themselves. Respondent, ELK Contractors LLC., was represented by Mr. Laren Ellsworth, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings, Tucson, and via webcam remote from the Registrar of Contractors’ Show Low offices. 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 herein, ELK Contractors, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 173482. 2. Complainants, Mr. Thomas and Ms. Helen Tucker, filed the instant Complaint against Respondent on or about November 14th, 2006, in the Arizona Registrar of Contractors’ Show Low office. 3. The Complaint concerned a number of aspects of Respondent’s construction of the Complainants’ new home in Show Low. The issues raised by the Complaint and the issues addressed at the administrative hearing were: (1) leaking basement; (2) a concrete patio slab that is out of level, which allows water to accumulate and remain in puddles, and (3) separating of the ceiling and walls. Importantly, for purposes of the administrative process that followed, the Complainants clearly stated in their Complaint that they were complaining about nails protruding, they were also waiting until after the first of the year for repairs in order “to allow the house to settle more and see if any further problems occurred.” 4. The Complaint was assigned to Registrar of Contractors Inspector Tom Sandoval who conducted a job site inspection in November, 2006, and issued a written Corrective Work Order to Respondent dated November 22nd, 2006. The CWO directed Respondent to correct the leaking basement, as well as the problem of water ponding on the concrete patio slab. Inspector Sandoval wrote in his CWO that the nail pops in the drywall were “no longer an issue at this time.” 5. Respondent failed to make the ordered corrections, and as Complainants had anticipated, “further problems” did develop with the drywall and ceilings. They requested an administrative hearing, which was duly scheduled, noticed and held. 6. At the administrative hearing the Complainants testified and had admitted into evidence several photographs, manufacturer’s specifications, and other documentary evidence in support of their Complaint. Respondent’s owner and Qualifying Party, Mr. Laren Ellsworth, testified. Inspector Sandoval also testified. 7. The greater weight of evidence, including Complainants’ credible testimony and Inspector Sandoval’s testimony, proved that Respondent has failed to correct the water ponding problem at the patio. Even Respondent testified that there remains such a problem, but minimized the corrective action he thought necessary, as compared to that sought by Complainants. There is credible evidence from Complainants that the problem with the concrete slab could be under the slab, where Respondent failed to properly compact the soil before pouring he slab. Respondent must cause the slab to be properly removed and replaced so as to assure positive grade away from the house. 8. The greater weight of evidence proved that Respondent had taken proper remedial measures to waterproof the basement walls. There was a lack of any evidence of further leaking since the corrective action was taken. 9. The item of the drywall and ceiling separation is the most controversial. The clear weight of evidence proved by Complainants’ credible testimony and ample photographic evidence proved that several of the areas where the walls and ceiling meet are literally separating from each other. This condition is precisely the “further problems” anticipated by the Complainants when they filed their Complaint. Complainants investigated into this problem, and discovered that the ceiling trusses had not been installed in accordance with the design specifications in that they were lacking certain parts that stabilize the truss system. 10. This condition was viewed by Inspector Sandoval and the parties at his pre-hearing inspection of the home the day prior to the hearing. It is the Inspector’s and the Respondent’s position that this is a new item not contained in the Complaint or any addendum thereto, and therefore is not properly before the Registrar. They base this opinion at least in part on what was discussed by the Inspector and the parties at the original job-site inspection when there appeared only the protruding nails from the drywall, and not the later more serious deconstruction of the walls and ceilings that developed only after the inspection. Then, Inspector Sandoval accurately explained to the Complainants, that pursuant to agency policy, a licensed contractor is obligated to repair such “nail pops” only once within the first year of construction. Thus the Complainants might choose to wait until toward the end of that first year before having Respondent repair the nail pops in case more should appear. Complainants agreed to this cause of action at the job site inspection ( as to the nail pops. Therefore, the CWO mentioned only that the nail pops were “no longer an issue at this time.” However, the Complainants did not waive or relinquish their Complaint item about further problems that might develop in this area as the house continued to settle. 11. It is obvious that the Respondent’s construction was defective to the point of causing the ceiling and walls to separate form each other in several areas. This extremely defective workmanship must be properly corrected. Moreover, Respondent must be held responsible for not only the correction of this defect, but the subsequent retaping, retexturing and repainting, and any other incidental work made necessary by the repairs. 12. Based on Respondent’s demonstrated inability to properly construct and make ordered repairs, Complainants understandably do not wish Respondent to be the contractor who makes the needed repairs. 13. 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). 3. The greater weight of evidence proved that Respondent has violated A.R.S. 32-1154.A.23 (failure to make the corrections in the CWO), and A.R.S 32-1154.A.3, poor workmanship. 4. There is insufficient evidence to prove that Respondent violated A.R.S. 32-1154.A.7, wrongful or fraudulent conduct, independent of the other violations. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 173482 be suspended until the Registrar receives written proof that Respondent has caused other appropriately licensed contractors to properly remove and replace the concrete patio slab, and properly correct the defective condition causing the walls and ceilings to separate, and make proper repairs to the damage caused by it. It is further recommended that if the Respondent causes the above- described corrective action to be completed on or before the effective date of this Order (40 days after the date of service shown on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint No. P07-0119, shall be closed. 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, September 13th, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826