ALJDEC decisions subject to certification as final

08F-T0182-ROC · Registrar of Contractors · 2009-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 12, 2009, at 1:30 p.m. APPEARANCES: The Complainants appeared through Julie Pierce. The Respondent appeared through its attorney, Eric Hawkins. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a new residence for the Complainants. 3. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct its work to their satisfaction despite repeated requests that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted several on-site inspections and issued two written Corrective Work Orders directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The September 12, 2007 Corrective Work Order provides, in pertinent part, as follows: “2. Driveway poured incorrectly and floods garage in rain: Contractor to correct by appropriate means. 3. Outside gate built incorrectly (not to homeowner drawings) and damaged block wall when opening: Contractor to correct by appropriate means. 4. Refrigerator space was to accommodate 36” unit according to information provided by the builder to homeowner: Contractor to correct by appropriate means. 5. French door was never properly adjusted: Contractor to correct by appropriate means. Items added at jobsite inspection on August 29, 2007. 6. French door was not what was selected by owner: Contractor to correct by appropriate means. 7. Ceiling fans/lights were not what was selected by owner: Contractor to correct by appropriate means. 8. Nook light is not what was selected by owner: Contractor to correct by appropriate means. 9. Wall cabinet margins not consistent either side of kitchen window; Contractor to correct by appropriate means. 10. Entry door was never adjusted properly: Contractor to correct by appropriate means. 11. Back porch was not built according to plans: Contractor to correct by appropriate means. 12. House setback from front of lot incorrect per the plan: Contractor to correct by appropriate means. 13. Rainwater ponds against front foundation of home: Contractor to correct by appropriate means. 15. Garage main door was never adjusted properly: Contractor to correct by appropriate means. 16. Strikes missing at French door flush bolt and astragal: Contractor to correct by appropriate means. 17. Garage not built according to plan: Contractor to correct by appropriate means.” 7. The April 18, 2008, Corrective Work Order provides, in pertinent part, as follows: ‘1. Complaint: No permit was obtained for yard wall over 72”- Contractor to obtain all required permits and inspections for project. 6. Complaint: House floods through entry door-Contractor to provide proper grading of property by appropriate means. 9. Complaint: Tiles cracked and grout failures-Contractor to correct by appropriate means. Complaint: Refrigerator damaged by contractor while installing it into a space with an incorrect width. 13. Complaint: Some electrical items have been corrected. Remaining items are can lights overheating and tripping-Contractor to correct by appropriate means.” 8. Credible testimony and evidence, presented at hearing, established that the parties had entered into a Settlement Agreement that resolved the issues of the back porch and the house setback before the Complaint was filed. The Complainants have already been compensated for these items and no further corrective action by the Respondent is required. 9. Credible testimony and evidence, presented at hearing, established that the remaining items set forth in the two Corrective Work Orders have not been corrected. 10. Credible testimony and evidence, presented at hearing established that the Respondent has failed to comply with the two Corrective Work Orders. 11. The Complainants are very dissatisfied with the combination of wire fencing and block walls that they have in their rear yard. Credible testimony and evidence, presented at hearing, established that the use of the block wall and wire fencing complies with the terms of the parties’ signed Addendum to their Purchase Contract. However, the Respondent must still comply with Item No.1 of the April 18, 2008, Corrective Work Order (Contractor to obtain all required permits and inspections for project). 12. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of their new home are understandable, construction work, such as that at issue herein, is not a perfect science. 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. In this regard, a contractor must be given reasonable opportunity to complete necessary remedial work. 13. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner and in failing to comply with the terms and conditions of two separate Corrective Work Orders, are found to constitute a wrongful act. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) (Failure to take appropriate corrective action) and (3); namely, Rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms and conditions of the two written Corrective Work Orders issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 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 this 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 the certification. Done this day, March 19, 2009.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com