ALJDEC decisions subject to certification as final

08F-3524-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2009. APPEARANCES: Trentham and Victoria Coe appeared personally. Gary Edward Young, doing business as Project Management Company, appeared personally and was represented by is attorney, Richard Klauer, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. Gary Edward Young, doing business as Project Management Company (“Respondent”), is the holder of License No. 066322, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On March 17, 2005, Trentham and Victoria Coe (“Complainants”) entered into a written contract with Respondent for the construction of a room addition at their residence located at 3034 E. Earll Drive, Phoenix, Arizona. 3. On April 3, 2008, Complainants filed a written Complaint with the Registrar alleging a lengthy list of alleged deficient workmanship by Respondent on their project. The Registrar designated Complainants’ Complaint as Case No. 08-3524. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view the alleged deficient workmanship. As a result of that inspection, Inspector Alyea issued a Corrective Work Order, the terms of which are incorporated herein by reference, directing Respondent to timely perform remedial repairs to specific Complaint items. Inspector Alyea also listed items determined not to require remedial repairs. 5. The Registrar issued a Citation and Complaint in Case No. 08-3524 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 6. The Registrar forwarded Case No. 08-3524 to the Office of Administrative Hearings, an independent agency, for formal hearing. Texture Issue 7. The existing interior plaster walls of Complainants’ residence have a stomp texture. This type of texture was used in homes constructed in the 1950s. Stomp texture is not commonly used today. 8. The parties’ contract specified a knockdown texture for the addition’s interior walls. 9. Respondent hired James William as the drywall subcontractor for the project. 10. Mr. William advised Mr. Coe that the knockdown texture would not be consistent with the stomp texture in the existing interior walls. He recommended a skip trowel texture, which he believed would be a more consistent texture. Mr. William applied samples of the skip trowel texture on an area of the addition’s drywall. Mr. Coe observed the skip trowel texture and agreed to change the addition room’s texture. 11. Complainants are found to have agreed to change the room addition’s texture from knockdown to skip trowel. 12. Mr. William also performed some repairs to the existing stomp texture. Roof 13. The roof constructed for the addition by Respondent has a ten-year warranty. 14. After the completion of the roof, Complainants experienced two leaks, which resulted in interior water damage. The cost to remediate the water damage was $3,279.00. 15. In addition to the remedial roof work required to be corrected in the Corrective Work Order, Respondent is also determined to be responsible for the costs of remediating the water damage. French Doors 16. Respondent installed French doors in Complainants’ residence. Complainants specified wooden doors. 17. Complainants complained that the French doors leaked during rainstorms, resulting in water infiltration into their residence. 18. Inspector Alyea issued a letter dated June 5, 2008, wherein he opined that Respondent did not need to take any action to the following items: “The front entry door and the back pair of French doors, were air and water tight.” 19. Respondent credibly testified that the French doors leaked at the prehearing jobsite inspection. He explained that when the wooden French doors absorb moisture during a rainstorm, the wood then expands and seals tight. Respondent further explained that when Inspector Alyea performed his first inspection of the French doors, they were swollen with moisture, thereby appearing air and watertight. At the prehearing jobsite inspection, the French doors were not swollen because they had dried out; therefore water could leak through the doors. Respondent offered to adjust the French doors. Corrective Work Order 20. There is a dispute between the parties as to whether or not Respondent timely responded to the Corrective Work Order. Respondent contends that he attempted to contact Complainants shortly after receiving the written directive. Complainants contend that he did not contact them until shortly before the expiration of the 15-day deadline to complete the repairs. 21. There is no dispute that Complainants denied Respondent access to perform the required remedial repairs. Complainants further testified that they will not grant Respondent access to perform any remedial repairs ordered to be performed in this disciplinary proceeding. 22. Respondent reaffirmed his willingness to perform the required remedial repairs set forth in the Corrective Work Order. 23. Construction is not an exact science. Respondent should be given a reasonable opportunity to correct deficiencies in his workmanship. Neither this tribunal nor the Registrar can require Complainants to grant reasonable access to Respondent necessary to complete the remedial work set forth in the Corrective Work Order and to adjust the French doors. However, any future denial of access by Complainants will have ramifications in this disciplinary action.[1] Allegation That Respondent Did Not Properly List His Contracting License Number Pursuant To Statute

24. Complainants failed to present any testimonial or documentary evidence addressing this issue. Any Other Issues 25. Any issue not specifically addressed in the above Findings of Fact or Corrective Work Order is found not to have sufficient evidence of record to support a Finding of either a statutory and/or regulatory violation.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Complainants denied Respondent reasonable access necessary to comply with the Registrar’s Corrective Work Order. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. Strong matters in mitigation are Complainants’ unreasonable denial of access necessary for Respondent to comply with the Corrective Work Order and Respondent’s admission that the French doors need adjustment, notwithstanding Inspector Alyea’s prior determination that no remedial work was necessary to the French doors. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The factual basis for this conclusion is the interior damage to Complainants’ residence caused by the two roof leaks. 6. There is no evidence of record to support the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar. The evidence of record does not establish a factual basis for this allegation.

RECOMMENDED ORDER Respondent’s contracting license shall be suspended on the effective date of the Order entered in Case No. 08-3524 until Respondent provides the Registrar with written proof, and the Registrar accepts such proof, of the following conditions: 1. That Respondent has paid Complainants restitution in the amount of $3,279.00; and 2. That Respondent has complied with the terms of the Corrective Work Order and that he has adjusted Complainants’ French doors, or that Complainants have denied him reasonable access to their residence necessary to accomplish said remedial work. If Respondent properly accomplishes the aforesaid remedial work and pays the above-provided restitution on or before the effective date of the Order entered in Case No. 08-3524, and the Registrar approves written proof of same, then the above-described license suspension shall not take place and the Citation and Complaint in Case No. 08-3524 shall be closed. If Respondent pays the above-provided restitution to Complainants and Complainants unreasonably deny Respondent access to their property necessary to perform the above-described remedial work necessary to comply with the Order entered in Case No. 08-3524, and the Registrar accepts proof of same, then Complainant shall be excused from the condition to perform the above-described remedial repairs in order to avoid the suspension of his contracting license. If this scenario should occur, then the Citation and Complaint shall be closed on the effective date of the Order entered in Case No. 08-3524. 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

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] An unreasonable denial of access by Complainants could affect their access to the Residential Contractors’ Recovery Fund and may excuse Respondent’s performance of the required remedial repairs as a condition to avoid the imposition of discipline against his contracting license.

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