ALJDEC decisions subject to certification as final

08F-L0207-ROC · Registrar of Contractors · 2009-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2009

APPEARANCES: Complainants appeared on their own behalf and Respondent was represented by its attorney, Harvey Jackson. 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. The instant matters came on for hearing pursuant to a decision of the Registrar of Contractors to hold compliance hearings, limited to the issue of compliance with the terms and conditions of the previously entered Decisions and Orders in the above-captioned matters.

2. Notwithstanding the fact that the above-captioned matters involve two separate Decision and Orders of the Registrar of Contractors, the cases were consolidated for hearing, pursuant to direction of the Registrar of Contractors. Nevertheless, the matters were heard one at a time, in order to determine the potentially separate issues and findings regarding compliance with the respective orders.

3. The Registrar of Contractors issued two Notices of Compliance Hearing, which essentially provided for the same limited hearing “in order to determine whether or not Respondent has complied with the terms of the Registrar’s …Order, absent unreasonable interference by Complainants. If it is determined that Respondent failed to comply with the terms of the Registrar’s Order, absent unreasonable interference by Complainants, Respondent’s Class B- license…may be subject to the imposition of immediate discipline.”

4. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearings, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

5. It is important to note and consider the history of these two cases, in order to determine compliance. Case no. L07-0059 involves an underlying hearing, which was conducted over the course of two (2) separate hearing dates. The hearing commenced on October 31, 2007 and was concluded on February 12, 2008. The Registrar issued his Order on this matter on March 12, 2008.

6. Notwithstanding the fact that the hearing in L07-0059 had not been concluded, on or about December 21, 2007, David Varman (“David”) filed the Complaint in case no. L08-0207. This Complaint asserted a number of new issues, along with many of the same issues set forth in case no. L07- 0059.

7. There was no hearing in case no. L08-0207, due to the determination by the Registrar that Respondent failed to file a timely answer to the issued Citation in that matter. Accordingly, a default Decision and Order was issued against Respondent on September 5, 2008, some six (6) months after the issuance of the Order in case no. L07-0059.

8. A careful review of the Corrective Work Order (“CWO”), issued in case no. L08-0207[1], shows that the inspector, who was assigned to investigate the issues of said case, made every effort to note the matters that were already at issue in the pending L07-0059 matter. In regard to these issues, the CWO provides that they were “already addressed” in a prior CWO of November 7, 2006.

9. It is not proper to file more than one Complaint against a contractor for the exact same issues that are pending in another previously commenced hearing. Therefore, it is determined and held that any issues that were litigated in case no. L07-0059, which were reasserted or duplicated in case no. L08-0207, shall not be the subject of any compliance determination in case no. L08-0207.

CASE NO. L07-0059

10. The Decision and Order in this matter required Respondent to accomplish appropriate and effective remedial work on the following items set forth in Finding of Fact no. 9:

a. The repair on the parapet wall is aesthetically unacceptable, since it is highly visible.[2] b. An exposed galvanized nail on the roof metal needs to be painted. c. Respondent failed to provide Complainants with a door of their choosing, pursuant to the applicable plans and specifications, which state that Respondent is required to verify this issue with Complainants.[3] In the event that Complainants decide to have a wrought iron door, then Respondent will be relieved of any responsibility in this regard. d. The grade adjacent to the new addition fails to provide adequate slope away from the structure. e. Existing patio needs to be removed. f. Although the Polycoat material is found to be an acceptable application for the walking deck, in accordance with the language set forth in the plans and specifications for this project, the workmanship in said area is not acceptable, as manifested by a lack of uniformity in the application, air bubbles, and cracks. g. Installation of the Duro-Last material on the roof, adjacent to the walking deck, is an acceptable material for said area. However, the workmanship in said area is unacceptable, as manifested by debris on the surface which has been painted over and a tear or abrasion in the material.

11. The Registrar’s inspector appeared at the instant hearing and provided testimony regarding his compliance inspection on this case. The salient portions of his testimony included the following in regard to the items set forth in Finding of Fact no. 10 (a) through 10 (g):

a. The stucco on the parapet wall was corrected. Although there are some hairline cracks in the stucco, they are not outside of acceptable standards applied by the Registrar of Contractors, since they were not excessive in number, not in excess of 1/16 of an inch, and not highly visible. b. The nail is still not painted. c. Although a new door was installed, stucco repair remains to be performed on either side of the door installation on the interior side of the door. d. Although some grading work appeared to have taken place, the grade still appears to slope toward the house. e. The patio was removed. f and g: There was nothing for Respondent to do on these issues, since Complainants had retained another contractor to remove both roof decks and replace same with a different type of deck material.[4]

12. Norm Betrue (“Betrue”), Respondent’s member and qualifying party, appeared at the hearing and testified regarding the items of corrective work and the salient points of his testimony included the following:

a. Respondent repaired the parapet and it looked good to him. b. He feels that the existing unpainted nails are not related to the nail in the original Decision and Order, but are part of the new roof work that Complainants had performed on their home by another contractor. He had sent a painter to the home and Brenda Varman (“Brenda”) had advised him that she was happy with the paint remedial work. She did not advise him of any areas of painting that required further work. c. No one advised him about the unfinished stucco work on the inside of the door. The first he heard about the stucco issue was at the pre- hearing inspection. He testified that he had asked Brenda if she was satisfied with the door, after installation, and she said that she was. She did not mention the stucco issue. d. He asked Brenda if she was satisfied with the grading work and she indicated that she would have David get back to him on that issue. When Complainants failed to get back to him, he assumed that they were satisfied with the grading work. e. There was no dispute that the patio was, in fact, removed. f and g: He could not perform any remedial work on the decks because Complainants had replaced same, prior to the date that the Order in this matter was effective.

13. David testified at the hearing and the salient portions of his testimony included the following:

a. He feels that the cracks in the parapet wall are very unsightly. b. The unpainted nail was never painted. c. He claims that Complainants never denied access to Respondent. However, he admits that at some point they kept the gate to the rear yard locked. d. He claims that Respondent failed to perform any grading work after issuance of the Order in this matter. e. They had replaced the roof decks, described in Finding of Fact 9 (f) and 9 (g), prior to the final day of hearing in this matter and had neglected to advise the Administrative Law Judge of this fact prior to the conclusion of the hearing.

14. Brenda testified that she was present when Respondent’s painter was onsite and she did not show him the nail to be painted.

15. Based on the foregoing, it is determined and held that the weight of the credible evidence of record was sufficient to support a finding that Respondent has failed to accomplish compliance on the issues of the painting of the galvanized nail, the installation of a proper grade away from the residence, and the front entry door installation, due to the incomplete stucco work around the door frame.

16. Respondent is found to have accomplished substantial compliance on the issues of the parapet wall and the patio removal. In regard to the repairs to the Polycoat and Duro-Last decks, Complainants effectively prevented Respondent from making any repairs, since they replaced same prior to the last day of the hearing in this matter and failed to mention said fact at the hearing.

CASE NO. L08-0207

17. At the outset of the compliance hearing in this matter, David averred that the only items that remained in contention, which were new items not covered in the prior case, consisted of items 5a, 5c, 6, 9, 11, 12a, 12b, 12c and 13, as set forth in the January 3, 2008 CWO from the assigned inspector.

18. The inspector testified regarding his compliance inspection for this Complaint and the salient portions of his testimony included the following:

a. Although there were stucco cracks at certain doors and windows, he did not observe any that were more than hairline in nature and the number of cracks were not excessive. Therefore, nothing in these areas was determined to be out of compliance. b. The issues in 5c from the CWO, involved areas that had been worked on by the subsequent roofer, retained by Complainants, and thus, there was nothing remaining for Respondent to do in this area. In addition, any discoloration of the stucco in this area was due to normal roof runoff. Without the installation of gutters this condition could continue. c. Although the drywall cracks in the garage, eaves and exterior ceiling had been repaired in item no. 6, the repairs have not been painted. d. Item no. 9 refers to what the inspector characterized as sub- fascia material and he testified that it is not necessary to use perfect wood in such an application. Thus, the wood installed was found to be in compliance with applicable Registrar of Contractors’ standards. e. On item no. 11, in regard to the sub-fascia that required scraping, sanding and painting, he found this area to have been adequately repaired. f. 12a, 12b, 12c, and 13 all involved areas that had been reworked or replaced by subsequent contractors retained by Complainants and thus, Respondent could not perform any remedial work in these areas.

19. Betrue testified that the first he heard about the need to paint the repaired drywall cracks was at the pre-hearing inspection. He further indicated that he agreed with the testimony of the inspector on all of the issues.

20. David testified that he believes the cracking around certain doors and windows is excessive. He further indicated that the sub-fascia wood, described in item no. 11, had not been replaced.

21. David admitted that he never advised Respondent that the drywall repairs were not painted. He contends that he never denied Respondent access to the property.

22. Based on the foregoing, it is determined and held that the weight of the credible evidence of record presented in regard to this Complaint supports a finding that the only item, wherein Respondent failed to accomplish total compliance, was the painting of the drywall crack repairs in item no. 6 of the applicable CWO.

23. Although total compliance by Respondent was not achieved, the record presented herein supports a finding that Respondent made a diligent and reasonable effort to comply, thereby justifying one final opportunity to accomplish compliance. However, Respondent is hereby placed on notice that it will have one, and only one, final opportunity to correct the above described issues. In this regard, Complainants are on notice that they must provide reasonable access to their property.

24. The inspector testified that Respondent had paid the civil penalty ordered in L07-0059, but has not yet paid the civil penalty in the subsequent matter.[5]

25. Although Complainants may feel that they are entitled to some form of compensation for the replacement roof and deck materials, neither Order of the Registrar provided for any type of restitution. These matters are administrative, disciplinary proceedings relating to a contractor’s license. The Registrar’s role in these matters is not one of a collection agency or judicial tribunal, but merely one duty-bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a Complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in any Complainant the right to receive any particular individualized relief or an order imposing any particular discipline.

CONCLUSIONS OF LAW

1. Respondent failed to comply with the terms and conditions set forth in the original Decision and Order issued in this matter. Nevertheless, the facts presented herein militate for the conclusion that Respondent should have one final opportunity to achieve compliance with the Decision and Order.

RECOMMENDED ORDER

In view of the foregoing, in regard to case no. L07-0059, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B- 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 15, above. 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 and case no. L07-0059 shall be closed. In view of the foregoing, in regard to case no. L08-0207, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B- 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 painting of the drywall crack repairs described herein. 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 and in that event, case no. L08-0207 shall be closed.[6] 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, March 17, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The CWO shows that it was dated January 3, 2008 (prior to the second and final day of hearing in the other matter). [2] Although the parapet remedial work was performed by Respondent, subsequent to issuance of the second CWO, once a contractor makes a repair, the repair must be capable of meeting appropriate industry standards. Repairs that fail in this regard remain a proper subject matter of a hearing which is held subsequent to completion of the remedial work. Thus, notwithstanding the fact that Complainants may have included this issue on another still pending Registrar of Contractors’ Complaint, the issue is found to be a proper issue to be decided at the instant hearing. [3] Although Respondent must install the type of door desired by Complainants, nothing in this ruling will serve to resolve the monetary issue that may arise as a result of the installation of a door by Respondent. If Respondent continues to claim that a door is an extra charge and Complainants refuse to pay any such claimed extra then Respondent will need to bring a civil action in a court of competent jurisdiction to resolve said payment issue. [4] It should be noted that the issue of whether or not Complainants were entitled to the type of replacement “cool” deck material, which they ultimately had installed by another contractor, was litigated at the hearing and the original Decision and Order ruled that the type of decking material, installed by Respondent, complied with applicable plans and specifications, although repairs were required. [5] It should be noted, that at the time of the instant compliance hearing, the Order in L08-0207 still had not been placed into effect, since there had been a petition for rehearing in said matter, filed by Respondent, the effective date of the Order was not until March 17, 2009. Thus, the $250.00 civil penalty in this matter had to be paid within 30 days after the effective date of the Order and the deadline to make said payment has not yet occurred. [6] Respondent must still pay the $250.00 civil penalty on or before the deadline date set forth in the Registrar’s original Decision and Order issued in this matter (i.e. within thirty days after March 17, 2009)

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