ALJDEC decisions subject to certification as final

09F-1962-ROC · Registrar of Contractors · 2009-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2009 at 8:00 a.m. APPEARANCES: Complainant Cornelia Goliac appeared on her own behalf; Respondent G X S Construction Inc. appeared through Richard C. Gramlich, Esq., Carmichael & Powell, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 4, 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC118766, Class B- for general residential contracting to Respondent G X S Construction Inc., a corporation. Franklin Thomas Gross is Respondent’s qualifying party. On October 8, 2008, the Registrar received a complaint against Respondent’s license from Complainant Cornelia Goliac, which alleged twelve specific workmanship deficiencies in Respondent’s construction of a roof over Complainant’s patio. Complainant stated that, of the contract amount of $7,355.56, Respondent had been paid $500.00. The Registrar assigned the complaint to Inspector Jeff Wills for investigation. Inspector Wills performed a jobsite inspection and, on December 5, 2008, issued a Corrective Work Order (“CWO”) to Respondent, in relevant part as follows: Contractor to correct the following by the appropriate means:

1. Roof patio doesn’t match the house roof: Per the Respondent, the job is not completed.

2. Connection of house you can see sky: Per the Respondent, the job is not completed. Per the Respondent, once the job is complete you will not be able to see sky in between the edge of the patio and the connection to the existing home.

3. There are nails that are not framed: The Complainant did point out (3) nails protruding through the sheathing of the patio cover near the home.

4. The ceiling in the bathroom was damaged: The Complainant pointed out an area approximately 6”x6” that was damaged when attaching a beam for the patio to the top plate of this existing wall.

No action required by the contractor on the following items:

1. Remove tree limbs: Per the Complainant, the tree limbs were removed by the Respondent and placed in the alley when the Respondent was to haul away. Per the Complainant, she or her son removed the limbs from the alley and hauled away.

2. They promised to have the water drain to the middle edge of the roof: This could not be determined by the Inspector at the time of the jobsite inspection.

3. A piece of the roofing is loose and not nailed: This could not be determined by the Inspector at the time of the jobsite inspection.

4. Contractor was mean: The Registrar of Contractors does not have jurisdiction over this matter; however, all parties should always conduct themselves in a professional and courteous manner.

5. The posts and foundation are not to permit code: The exact or specific size of the footings installed by the Respondent for the supporting posts of the patio cover could not be determined by the Inspector at the time of the jobsite inspection.

6. The connection to the main beam of the house is not safe: Due to the patio in this area already being installed, this item could not be determined by the Inspector at the time of the jobsite inspection.

7. Sizes of wood used is [sic] not the correct size for this purpose: It is the opinion of this Inspector that the size of the material used for this patio cover is appropriate for the patio.

8. A piece of the roof fell and almost hit me: Per the Complainant, this is the same or related to item # 3 above in the no action section. This could not be determined by the Inspector at the time of the jobsite inspection. . On January 6, 2009, the Registrar received Complainant’s request for hearing. On January 16, 2009, the Registrar received Respondent’s request that the complaint be dismissed because, despite numerous attempts to contact Complainant, Respondent had not been allowed access to comply with the CWO. On May 27, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (7), (23), and (3) (namely A.A.C. R4-9-108). Respondent timely answered the Citation and Complaint, denying any statutory violation and affirmatively alleging that Complainant had refused to allow access for Respondent to comply with the CWO or to complete the job. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. On August 4, 2009, the Registrar issued a Notice of Hearing on Complainant’s complaint against Respondent’s license. A hearing was held on October 21, 2009. Complainant testified, presented the testimony of her son, Roger Goliac, and submitted four exhibits, including three exhibits that consisted of multiple photographs of Respondent’s work. Respondent presented its qualifying party Mr. Gross’ testimony and submitted four exhibits, including one exhibit that consisted of multiple photographs of Respondent’s work. Inspector Wills also testified. Additional Hearing Evidence Complainant is an older lady who suffers from diabetes and high blood pressure. Complainant owns an older house at 5010 N. 39th Avenue in Phoenix. Complainant raised her family in this house. For 37 years, Complainant was “so happy with” with the covered patio that was attached to the back of her house. During the summer monsoon storms of 2008, Complainant’s patio roof was damaged. Complainant made a claim to her homeowner’s insurer to repair or replace the patio roof. On August 26, 2008, Complainant and Respondent entered into a contract for Respondent to repair “Storm Damage Claim # PP008041917” for a total cost of $7,355.46, with a deposit of $500.00 to start the job. In the contract, Complainant authorized her insurance carrier to pay Respondent directly. The contract did not require Respondent to obtain a permit. The damaged patio roof had a valley in it for drainage, which Mr. Gross testified “contributed to its demise.” Complainant testified that Respondent had promised to rebuild the patio roof “exactly as it was.” Respondent’s crew demolished the existing roof in preparation for reconstruction and began framing the new patio cover with a hip roof. Because the condition of the posts of the damaged roof did not allow them to be re-used, Respondent replaced the posts. The former roof had included a beam that was attached to the exterior fascia. Respondent placed the beam for the new roof on a framing plate, which caused minor damage to the bathroom drywall ceiling, as noted in the CWO. Complainant testified that members of Respondent’s crew were “very rude” and that she was “afraid of them.” She tried to tell Respondent’s crew that they should not reuse any of the posts from the old porch and that they needed to construct the patio roof with a valley, like it had before. Complainant also testified that she could “move with her finger” the framing that Respondent’s crew constructed. Complainant testified that she also contacted the City. City personnel said they would fine her if the patio roof was built without a permit. Respondent’s crew had to trim a tree next to the patio to allow construction and placed the tree limbs in the alley behind Complainant’s house. After a while, the wood started drying out and Complainant’s son removed the limbs to avoid a fire risk. Complainant testified that she paid $50 to have the wood removed. Mr. Gross testified that a permit is not required to repair or replace an existing patio roof. After the jobsite inspection, Respondent called Complainant on December and 15, 2008 to arrange a time to have its workers do the work to comply with the CWO. Respondent also sent letters to Complainant to arrange access on December 12, 2008, December 16, 2008, January 27, 2009, February 20, 2009, March 3, 2009, and April 2, 2009. Inspector Wills testified that most of Complainant’s complaints about the patio roof were due to the incomplete stage of construction. Inspector Wills testified that the protruding nails could have been easily clipped and the damage to the drywall could have been easily repaired. Complainant never allowed Respondent access to comply with the CWO. Instead, she hired another contractor to complete the patio roof. The patio presently has a hip roof. The record does not show whether the second contractor obtained a permit or whether Complainant was ever fined for allowing construction to proceed without a permit. Respondent submitted photographs of the work that it had performed to Complainant’s homeowner’s insurer and obtained payment. Complainant testified that she does not want to put Respondent out of business. She does not want anyone to go through what she went through. She would like an apology from Respondent. According to the Registrar’s record, Respondent’s license is current and in good standing. There is no record of discipline against the license. One complaint has been resolved, settled, or withdrawn. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] Complainant did not submit any plans or specifications and did not establish that a permit was required for the patio roof to be repaired or rebuilt. Complainant therefore has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(2).[5] Respondent has established that Complainant failed to provide reasonable access to allow it to comply with the CWO. Because Respondent has established this affirmative defense, Complainant has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(23) in failing to complete or to repair the patio roof.[6] Respondent has also established that it would have repaired the protruding nails and minor damage to the drywall during the normal course of construction if Complainant had allowed Respondent to complete the job rather than making a complaint to the Registrar and hiring another contractor. Complainant therefore has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(7)[7] and (3)[8] in its preliminary construction of the patio roof. Storm or fire damage to the home in which a person has raised her family and lived for decades is a stressful event. Complainant’s negative impression of the workmen that Respondent sent to repair her patio roof may have justified her termination of Respondent from the job and her hiring of another contractor. Although everyone should endeavor to be courteous and sensitive to others’ feelings, the conflicts and misunderstandings in this matter do not justify any penalty against Respondent’s contractor’s license. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss Case No. 09-1962 against Respondent G X S Construction Inc.’s License No. ROC118766, Class B-. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, October 29, 2009.

______________________________________ Diane Mihalsky 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] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

[7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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