ALJDEC decisions subject to certification as final

08F-2921-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2009 with further hearing on May 5, 2009 APPEARANCES: Complainant Robert Cowart appeared on his own behalf. Thomas Moring, Esq. represented Respondent AAA Remodeling and Contracting, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent AAA Remodeling and Contracting, L.L.C. (“AAA”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT AAA is the holder of a Class B-03 license (No. 199065) issued by the Registrar of Contractors (“ROC”). Garth Heinen is AAA’s qualifying party and member. On May 23, 2007, Complainant Robert Cowart contracted with AAA for AAA to remodel a bathroom, and construct a bedroom and storage room addition to his home located at 4601 East Solano Drive in Phoenix, Arizona. Mr. Cowart also hired a friend, Stephen Prince, to act as a construction manager for the project. Mr. Prince is not a licensed contractor. AAA substantially completed its work. During the course of construction, and after substantial completion, Mr. Cowart and Mr. Prince had several concerns regarding AAA’s work and provided AAA with a punch list. Mr. Cowart and Mr. Prince were dissatisfied with AAA’s response to the punch list. As such, on March 6, 2008, Mr. Cowart filed a complaint against AAA with the ROC generally alleging the following: i) AAA had abandoned the project; ii) AAA failed to perform portions of its work in a professional and workmanlike manner; iii) AAA utilized an unlicensed roofing subcontractor; iv) the roofing work is unacceptable; and v) AAA overcharged Mr. Cowart for work performed. ROC Inspector Jeff Fleetham investigated Mr. Cowart’s complaint. 5. On April 8, 2008, Inspector Fleetham conducted a jobsite inspection. Present for the inspection were Mr. Prince and Nick Marietta, AAA’s designated representative. 6. On April 23, 2008, following the jobsite inspection, Inspector Fleetham issued a three page Corrective Work Order (“CWO”) (attached hereto as Exhibit “A”) under which the ROC gave AAA 15 days to take corrective action with respect to twenty-nine items of complaint. The CWO also indicated that AAA was not responsible to take action as to 13 items of complaint. 7. On March 27, 2009, Inspector Fleetham conducted a pre-hearing inspection. Present for the inspection were Mr. Prince and Mr. Heinen. Inspector Fleetham testified regarding the roofing complaints delineated as CWO item numbers 2, 6, and 7, that “humps” remain in the foam roofing material at the air conditioning unit, that ponding of ¾” exists, and that there is lath wire exposed at the corner that is the result of either the foam roofing material being too thin, or improper stucco coating. Inspector Fleetham testified regarding CWO item number 15, that while the hinges on the master bath water closet door have been repaired, the door is warped beyond ¼”, which is not within an acceptable tolerance. Inspector Fleetham testified as to CWO item numbers 16, 17, and 26, that the north wall in the exercise room and the sky-light wall have not been re-painted, and the area above the top right of the master bedroom slider door is not re-painted. Regarding CWO item number 18, Inspector Fleetham testified that the filler used in the marble shelf in the bathroom is “pock-marked” and raised. As to CWO item number 19, there is still paint on the window frame of the water closet. Inspector Fleetham testified that as to CWO item numbers 28 and 29, there is stucco above the weep holes. As to CWO item number 21, the drawer face has not been replaced. Regarding CWO item number 22, the four doors on the linen cabinet have been replaced. As to CWO item numbers 4 and 10, Inspector Fleetham testified that it appeared to him that foam had been removed from the scuppers and the area near the exhaust fan. As to CWO item numbers 5, 14, 23, 24, 25, and 27, these items have also been corrected. 8. Mr. Prince testified that he recommended AAA to Mr. Cowart, that he provided the plans for the project to AAA, and negotiated Mr. Cowart’s contract with AAA. Mr. Prince testified that Mr. Cowart paid him approximately $19,000.00 for his services as a construction manager. Mr. Prince testified that Mr. Cowart purchased and paid for the windows for the project directly, and that AAA installed them. Mr. Prince also testified that Mr. Cowart selected the marble slab that was used for the shelf in the bathroom. Mr. Prince acknowledged that AAA had recently replaced the linen closet doors. Mr. Prince testified that all of the items on the CWO have not been properly completed, notwithstanding that AAA had access to the exterior of the property seven days a week, and could have had access to the interior of the property at any time with just a phone call for notice.

9. Mr. Cowart testified that he simply wants all of the items that AAA was ordered to correct to be fixed. Mr. Cowart further testified that he wants a new marble shelf in the bathroom, that some of the bamboo flooring needs to be removed and replaced, that one of the linen cabinet doors is still not right, that one drawer face in the bathroom is a different color than the others, that the Saltillo tile is stained, that there are grout stains, that he does not know whether the electrical is proper, and that he has paid “a lot of money” and feels “he got ripped off.” Mr. Cowart acknowledged that he and Mr. Prince selected the marble slab used for the bathroom vanity, and thereafter for the shelf. Mr. Cowart testified that he wants liquidated damages pursuant to an addendum to the contract executed by the parties on February 4, 2008. While this administrative hearing is not the proper forum to address liquidated damages, nothing herein shall be construed as preventing Mr. Cowart from seeking such damages in a court of competent jurisdiction. The Administrative Law Judge finds that Mr. Cowart failed to present probative or substantial evidence establishing that AAA overcharged him for work. 10. Nick Marietta was hired by AAA as a licensed subcontractor from the drywall stage of the project through completion. Mr. Marietta testified that he was present for the jobsite inspection conducted by Inspector Fleetham and that he personally performed much of the corrective work ordered to be done by the CWO. Mr. Marietta testified that the work he performed was done in a professional and workmanlike manner and was accepted by Mr. Prince on behalf of Mr. Cowart. Mr. Marietta testified that he did not perform some of the work, such as stucco and roof repairs because he is not licensed to make such repairs. Mr. Marietta testified that AAA hired other contractors to perform the roof and stucco work, and that the roofing work was performed while Mr. Marietta was on site, and he met with the stucco contractor, although that work was not performed in his presence. 11. Mr. Marietta testified that he performed the painting of the master bedroom wall, cleaned the overspray from the windows, trimmed and caulked the bathroom doors, re-painted the skylight area, touched up the base boards, power washed the patio, and removed paint from the window frames. Mr. Marietta acknowledged that the only corrective work not performed was stucco related, and that the weep holes are stucco related. Mr. Marietta opined that the “humps” in the foam roof were adequately addressed, that the exhaust fan screen was corrected, and that the roof meets code. Mr. Marietta explained that the marble used for the bathroom shelf was left over material from the slab that was used for the bathroom vanity. Mr. Marietta testified that the filler cannot be repaired. Mr. Marietta testified that the Saltillo tile was cleaned to the best of his ability, and that the construction should not have affected it as the room in which it is located was sealed off during construction. 12. Mr. Heinen testified that Mr. Prince ordered the windows for the project from a company for which he had previously worked. Mr. Heinen testified that the window openings were framed in appropriately according to the plans. However, the windows ordered by Mr. Prince were inappropriate as they were single hung windows. Mr. Heinen testified that when he brought this issue to Mr. Prince’s attention, Mr. Prince directed Mr. Heinen to install the windows horizontally, rather than vertically as they were meant to be installed. This type of installation caused the weep holes to be on the sides of the windows rather than on the bottom, and stucco was applied over the weep holes pursuant to the plans that called for a stucco coating. Mr. Heinen testified that the windows passed inspection by the City of Phoenix because such an installation is permissible and that a Certificate of Occupancy was issued for the project. Mr. Heinen testified that he advised Mr. Prince against such an installation. However, Mr. Prince did not want to delay the project by re- ordering windows. 13. Mr. Heinen testified that the piece of marble used for the bathroom shelf was a remnant from the marble used for the vanity, and that the installation of the shelf was an afterthought of Mr. Prince. Mr. Heinen contacted the fabricator to inquire as to whether the remnant was still available and whether it would be a sufficient size for the shelf. The fabricator advised that the remnant would work for a shelf. Mr. Heinen explained that the filler, about which Mr. Cowart has complained, was installed when the marble was mined and that it was present on the piece of marble when Mr. Cowart and Mr. Prince chose the slab. 14. Mr. Heinen testified that AAA should not be responsible for the marble slab shelf, the windows, or the weep holes, because the slab was chosen by Mr. Cowart and the filler was present when the slab was chosen, and the windows were installed at the direction of Mr. Prince notwithstanding Mr. Heinen’s advisement against such an installation. 15. Regarding the cabinets and drawer face, Mr. Heinen testified at length about the Kraftmaid saga and the number of times the cabinets were delivered damaged either with manufacturing defects or from transit, or were inadvertently disposed of by cabinet installers at another property. 16. Mr. Heinen acknowledged that AAA had an unlicensed roofer performing work on the project at one point during the course of construction. Mr. Prince discovered that the roofer was unlicensed and informed AAA that an unlicensed contractor was performing roofing work. Mr. Heinen credibly testified that the roofer represented to him that he was licensed. However, when AAA discovered the roofer’s unlicensed status, AAA hired a licensed roofing contractor to complete the work. CONCLUSIONS OF LAW In this proceeding, Mr. Cowart bears the burden to prove, by a preponderance of the evidence, that AAA is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(10), and/or (A)(23) as charged by the ROC in its November 12, 2008 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Cowart met his burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged AAA with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that AAA failed to perform portions of its work at Mr. Cowart’s home in a professional and workmanlike manner, as evidenced by Inspector Fleetham’s testimony, the issuance of the CWO, and AAA’s own admission that corrective work remains to be performed. Therefore, the Administrative Law Judge concludes that AAA is in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(20), a contractor is subject to discipline for “aiding or abetting an unlicensed person to evade the provisions of this chapter . . .” AAA acknowledged that it initially hired an unlicensed roofing contractor to perform work at Mr. Cowart’s home. Notwithstanding the fact that AAA believed the contractor to be licensed, it was incumbent upon AAA as a licensed contractor to ensure that its subcontractors are properly licensed. Therefore, the Administrative Law Judge concludes that AAA is in violation of A.R.S. § 32-1154(A)(10). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued AAA a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that while AAA complied with portions of the CWO, it failed to fully comply. Therefore, the Administrative Law Judge concludes that AAA is in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Mr. Cowart established that AAA committed wrongful acts that substantially injured him by failing to perform portions of its work on the project in a professional and workmanlike manner and by failing to fully comply with the CWO. Therefore, the Administrative Law Judge concludes that AAA is in violation of A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against AAA’s Class B-03 license. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend AAA’s Class B-03 license. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against AAA’s license without providing a condition to reduce or eliminate same. The Administrative Law Judge concludes that the ROC should suspend AAA’s Class B-03 license subject to the condition that AAA can avoid such suspension by performing the corrective work delineated and ordered to be performed in the CWO that has yet to be performed, with the exception of CWO items: i) number 18, the marble shelf; ii) number 28, the weep holes; and iii) number 29, the windows.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, AAA’s Class B-03 license (No. 199065) shall be suspended until the ROC receives written proof that AAA has performed the corrective work delineated and ordered to be performed in the CWO, that has yet to be performed, with the exception of CWO items: i) number 18, the marble shelf; ii) number 28, the weep holes; and iii) number 29, the windows. If the ROC receives written proof that AAA has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. 08-2921 shall be closed. 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 will be 40 days from the date of that certification. Done this day, May 19, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

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