ALJDEC decisions subject to certification as final

07F-P0209-ROC · Registrar of Contractors · 2008-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2008 and May 20, 2008

APPEARANCES: Sheldon and Adrienne Chernov, Complainants; Kelly Johnson, Complainants' Attorney; Dan Fredenberg, Respondent’s Attorney; Steven Iverson, Respondent; Phil Krisher, Complainant’s witness; Jeff Wantland, Respondent’s witness; Bill Swanstrom, Respondent’s witness; Don Stoekovich, Respondent’s witness; Tom Sandoval, Registrar of Contractors Inspector

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the evidence and testimony of the witnesses and having read and considered the record in the above matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. The Complainants, Sheldon and Adrienne Chernov, contracted with the Respondent, Iverson Homes, Inc. ("Iverson"), on January 10, 2006 for an exchange of land and for Iverson to build a home for the Chernovs. On February 5, 2007, the Chernovs filed a complaint with the Registrar of Contractors alleging various workmanship issues with the home.

2. On March 6 and May 16, 2007, Registrar of Contractors Inspector Tom Sandoval issued two Corrective Work Orders. Unsatisfied, the Chernovs requested a hearing. 3. Prior to the hearing, Inspector Sandoval conducted a pre-hearing job site inspection. He testified that the items he inspected included the concrete floor in the house and garage, the master shower, the floor color around the master toilet, slide-out shelving in the master bathroom, a scratched door, a window ledge, and some nail holes. His inspection showed that the indoor concrete floor was cracked but could be corrected and, while he found that it did not meet workmanship standards, he did not testify that he had measured it. He found that the bathroom cupboard required an additional slide-out shelf and that the dented door had been repaired but some paint was chipping and needed to be touched up. Otherwise, he found that all remaining items, including the bathroom window sill and garage floor, met workmanship standards as of the time of the pre- hearing job site inspection. 4. Mr. Chernov testified that he did not receive a price breakdown of the charges on his home. He also stated that the indoor flooring was to be colored concrete, saw-cut to look like tile and it was not saw-cut in the house or in the garage. He also testified that he did not remember being told that the concrete would crack. He said that since the house first went into construction, he has become disabled and is now in a wheelchair, and the crack in the concrete makes in hard for him to move around the home, yet he wants the saw-cuts that would create even more lines in the floor. He said that he thought the saw-cuts would not be as wide as the cracks. He also said that the Respondent might have told him that the floor would crack but if that was the case, the Respondent should not have installed it. He said he thought the home was supposed to be ADA (Americans with Disabilities Act) compliant but he does not know where his contract or other paperwork says that. Nevertheless, the doors in the home are extra wide and the master bathroom toilet is a handicapped toilet in that it is higher than a standard toilet. 5. Mr. Chernov testified that the house was supposed to have a snail shower in the master bathroom. He noted that a snail shower was included in a proposal submitted by the Respondent but it is not in the plans or in the home. He said he cannot use the roll-in shower that is there now because the rise is too high and he is not strong enough to roll in. He also said he cannot use it because he cannot shower in his wheelchair and he does not know where the bench is in the shower. He admitted that he has not tried to shower in the new home. In fact, the Chernovs have never moved into the home. 6. Mr. Chernov testified that he and his wife made an agreement to settle the complaint if the Respondent would put epoxy coating on the floor but he rescinded the agreement because the floor was not done to his satisfaction and other items on the complaint still remain. 7. Adrienne Chernov testified that she told the Respondent that her daughter was in a scooter and headed for a wheelchair and they wanted the snail shower so that she could come visit and be able to take a shower. She said that the construction agreement didn't specify the details and she did not get a copy of all of the plans. She said that the proposal (Exhibit C23) promised a snail shower. However, it also contained other items that the Chernovs chose not to get and do not have on the home. It also states that the home is to be 1650 to 1750 square feet but the home is 1648 square feet. The Chernovs would have had to choose a larger model to accommodate a snail shower. 8. Mrs. Chernov testified that she asked her husband to sign the settlement agreement but they rescinded because the floor did not look as expected and because it was no longer saw-cut. 9. Mrs. Chernov stated that she was supposed to get custom cabinets but this was not in writing. 10. Mrs. Chernov stated that since Mr. Chernov has taken ill, he sees many doctors in Mesa, where they now live. He has had five hospitalizations, two strokes and a knee infection. He has no doctors yet in Star Valley where the new home is located. 11. The Chernovs hired Phil Krisher, a general contractor, to look at the property and make a report. (Exhibit C37, dated December 26, 2007) He testified that concrete will crack. He said the garage floor was cracked but he did not know the applicable codes so he did not know if the cracking was within tolerance. He said the shower was not a snail shower and the bathroom was too small for a snail shower. He said the roll-in shower was not ADA compliant and did not roll in the same way others do that he has seen. He said that some water would probably escape from it during use. He admitted that the plans did not call for a snail shower or an ADA compliant shower. He said that the requirement of a handicapped toilet does not mean that the bathroom was to be ADA compliant. He also stated that the bathroom was too small to be ADA compliant. 12. He noted that the bathroom cabinets had been modified to accommodate a wheelchair. He said the master bath window sill was slanted and not aesthetic. He admitted that the living area floor was cracked in one place, though it was not out of tolerance, and it was not saw-cut. 13. Mr. Krisher was shown Exhibit C54, which is a wish-list submitted to the Respondent by the Chernovs. However, it was not signed by the Respondent or agreed to by the parties, so the document is irrelevant. 14. Steve Iverson, the Respondent's president and Qualifying Party testified that Mr. Chernov brought him Exhibit C54 during construction but the proposed items were not workable because the home was not large enough to accommodate Mr. Chernov's ideas. He stated that the snail shower, which was an option before the Chernov's decided which model to build, was never on the plans for the model they chose. Since Mr. Chernov became wheelchair bound during construction, the shower was field-modified to try to accommodate him at the Respondent's expense but after three attempts, Mr. Chernov was still not satisfied. 15. Mr. Iverson testified that Respondent poured the color concrete and saw-cut it. Then it got a small crack, so Respondent jack-hammered out that area and re-poured it but the Chernovs did not like the appearance. The parties then reached an agreement (Exhibit C19, dated May 22, 2007) that the Respondent would apply an epoxy coating to the entire floor and that the Respondent had completed all items in the complaint and the Chernovs agreed to close the complaint. He said that applying the epoxy filled in the saw-cuts, which the Chernovs knew about when they made the agreement. Although Mr. Chernov did not sign the exhibit, he did not stop the Respondent from pouring the epoxy floor. It is also noted that the Chernovs have never complained that the epoxy floor was poured without their consent. Mr. Chernov also signed Exhibit C11, page 4, the same day stating that all complaint items had been resolved. Although he did not go into the home that day, he relied on his wife to tell him that the items had been repaired and she did go in the home and inspect the complaint items. Mr. Iverson testified that no written warnings had been given to the Complainants regarding concrete or epoxy flooring because they are not required. 16. He testified that the pull-outs in the bathroom cabinet are not available from the manufacturer, and he was not sure that the contract called for pull-out drawers in the bathroom. In fact, Exhibits C24, C25, and C26, item 20, show that the pull-out drawers were for the kitchen, not the bathroom. 17. Mr. Iverson agreed that a repair of the door had failed slightly where a small edge needed painting. He also said that his staff has provided all the documents requested by the Chernovs. 18. Mr. Iverson testified that all changes to plans are required by contract to be in writing. The contract also requires the Respondent to build according to the plans, which were available to the Chernovs at the time of the contract. 19. Don Stoekevich, Respondent's employee for 4 years testified that all items in the home were discussed with the Chernovs before the contract was signed. He remembers talking about the concrete floor because it was an unusual request. He said he warned the Chernovs that it was not a good idea because concrete cracks, but they insisted. Although he did not put it in writing, he stated they were well aware of it. He also said that they did not bring up a snail shower but requested a walk-in shower rather than the standard tub and shower. 20. The Chernovs argued that they want to live in the home but they can't. While that is regrettable, the Chernovs received the home they contracted for. Mr. Chernov admitted that it is difficult to use his wheelchair over a cracked surface, yet he claims that he wants the floors saw-cut, using this as a major dispute that prevents the Chernovs from moving into their home. The inconsistency of complaining about a crack, yet wanting more cracks, was troubling. Nevertheless, the weight of the evidence did not establish a violation by the Respondent. 21. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7), and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. In this case, the Complainants have not established that Respondent violated A.R.S. § 32-1154(A)(3), (7), or (23) or A.A.C. R4-9- 108, except for a small scratch on a door that needs to be touched up with paint, which was de minimus. Therefore, the Citation and Complaint should be dismissed. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Citation and Complaint in this matter be dismissed in its entirety. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.

Done this day, June 9, 2008 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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 ___________________________ -----------------------

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