ALJDEC decisions subject to certification as final

08F-2626-ROC · Registrar of Contractors · 2009-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2009 APPEARANCES: Complainant was represented by her attorney, Patrick Monahan and Respondent appeared telephonically through its owner, Dean Thorstad. 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 accomplish remodel work on two bathrooms in her home. Complainant contends that there are certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The weight of the evidence of record was sufficient to support a finding that the following constitute existing deficiencies in the work performed and/or materials provided by Respondent:

a. The original shower installation in the hall bathroom leaked water, causing specified damage to areas of the home in close proximity to the water leakage. Although Respondent ultimately corrected the leaking shower issue, the repair/replacement grout for the shower tile fails to adequately match the existing adjacent grout. In addition, the water leakage has caused specified damage to the baseboards in the immediate area. b. Specified tile work behind the vanity in the hall bathroom has not been completed. c. Respondent repaired a large hole cut in the drywall adjacent to the leaking shower, however this repair fails to adequately match the existing drywall texture and remains highly visible. d. Drywall work was not completed in the area around the new shower enclosure and there is a significant crack in the drywall adjacent to a light fixture. e. Electrical for the Jacuzzi tub in the master bathroom fails to operate without immediately tripping the circuit breaker. In addition, the electrical wiring for the Jacuzzi tub is not linked to a dedicated GFCI circuit breaker, as required by applicable code. f. The master bathroom toilet leaks water at the base and has discolored the tile grout in said area. g. There is excessive lippage in the floor tile installed in the master bathroom. h. Electrical receptacles in the master bathroom fail to operate properly, in that they tend to trip the circuit breaker when more than one receptacle is in use at the same time. i. Plan required smoke detectors were not installed. j. The local building authority will not issue a final inspection approval for the shower installations, since it was unable to view the plumbing installation in said areas before they were covered up.

3. The applicable contract required Respondent to obtain and pay for the permit for the project. Nevertheless, evidence of record showed that Complainant obtained and paid for the permit.

4. Complainant testified that at the time the hall bathroom shower was repaired to stop the leakage, water was found behind the wall, as well as mold. According to Complainant, no professional mold remediation was performed by Respondent and the only remedial work Respondent performed on the mold issue was to apply Clorox to the discovered mold. It is determined and held that Respondent should be responsible for a proper mold remediation of all areas exposed to the water leakage.

5. Respondent failed to complete the following aspects of the project, which were ultimately corrected by Complainant:

a. One of the bathroom exhaust fans was not connected to the exhaust vent and thus, the exhaust from the fan was merely blowing into the attic space. b. Respondent failed to install the bracket for the handheld shower head. c. Respondent failed to complete the master bathroom door installation. d. A specified pocket door failed to move smoothly. e. A master bathroom light fixture was installed in the wrong location.

6. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on some of the items, substantial compliance was not accomplished. Respondent contends that Complainant stopped him from working on the corrections before he had accomplished total compliance with the directive. Complainant denies that she prevented access and asserts that Respondent’s designated worker claimed he was not being paid by Respondent and therefore, would perform no further work on the ordered remedial work.

7. It is determined and held that credible evidence of record supports a finding that Respondent failed to comply with the above- described Agency directive.

8. Complainant testified that she has suffered with this project for almost two (2) years and originally Respondent had advised her that the project would only take two (2) to three (3) months to complete. Under these circumstances she does not want Respondent back on the project and seeks monetary compensation, in order to allow her to hire others to correct the existing deficiencies on the project.

9. Respondent contends that the remaining work would only take one or two days to complete and if Complainant allows proper access these items would be fixed. Although Complainants concerns, frustrations, and aggravation regarding the problems she has experienced with the bathroom remodel project at issue herein, 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.

10. Notwithstanding Complainant’s desire to have Respondent pay for others to correct the existing deficiencies on the project, the record presented herein does not justify a departure from a longstanding policy of the Registrar of Contractors to allow a contractor an opportunity to correct any determined deficiencies after an administrative hearing. However, Respondent is on notice that he will have one, and only one, final opportunity to fix the substandard and unacceptable work on this project, along with correcting any damage caused by the leaking water. Regarding the mold remediation, Respondent must hire an appropriately licensed mold remediation company to resolve all mold related issues.

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 that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent 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), (2) 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-03 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 2(a) through 2(i), obtains a final approval from the local building authority, reimburses Complainant for any expenditures in obtaining the permit, and causes a properly licensed mold remediation company to inspect for mold contamination and to remediate as needed. 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-03 license be placed on a period of 120 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. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $200.00 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, January 8, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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