ALJDEC decisions subject to certification as final

10F-A0019-ROC · Registrar of Contractors · 2010-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, James P. Abdo. The Respondent appeared through his attorney, Thomas K. Kelly. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of a Class B- License (No. 056122) issued by the Registrar of Contractors. 2. This is a residential matter in which the Respondent constructed a small building described as a loafing shed for the Complainant. 3. There was no dispute that the Complainant obtained the permit for the construction of the building from the local building authority as an owner/builder. 4. There was no dispute that the Complainant obtained a materials package from a local hardware store and furnished the construction materials utilized for the construction project. 5. Credible testimony and evidence established that the Complainant paid the Respondent $3,000.00 for the construction of the building. 6. Credible testimony and evidence established that the Complainant also paid the Respondent $300.00 for the design of the building which the Respondent then paid to the draftsperson who actually prepared the plans for the building. 7. There was no dispute that the local building authority approved the plans for the building with the specific provision that the new building could not be attached to the nearby metal building until and unless the Complainant could obtain engineering specifications from the manufacturer of the metal building that such an attachment would be appropriate. 8. The Complainant requested a footing inspection on July 19, 2009, and the local building authority conducted an inspection and passed the Respondent’s work that had been performed on the footings. 9. The Respondent then completed the construction of the new building and removed the temporary construction bracing from the building and left the construction site. 10. The Complainant then called for a roof nailing inspection which was to take place on July 22, 2009. 11. On July 21, 2009, the Complainant noticed that the Respondent had apparently failed to install several hurricane straps on the new shed and decided to attach the missing straps himself rather than to contact the Respondent and have the Respondent travel back to the Complainant’s residence in Chino Valley. 12. The Complainant then placed a ladder against the structure and began nailing the missing hurricane straps into place. There was no dispute that the structure then collapsed and that the Complainant was severely injured as a result of thereof. 13. During his recovery, the Complainant’s filed a formal complaint against the Respondent with the Registrar of Contractors. 14. Pursuant to the filing of the Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 26, 2009, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 15. The Corrective Work Order provides, in relevant part, as follows: This contractor was hired by the homeowner to construct a shed adjacent to a metal building on their (sic) property. During construction, the shed collapsed because no temporary bracing was provided prior to the attachment of the shed to the metal building. The contractor shall take necessary and proper action to correct all construction deficiencies associated with this failure and to fulfill the terms of the contract in accordance with the requirements of the Building Official of the Town of Chino Valley. 16. On August 28, 2009, the Complainant’s attorney notified the Respondent that the Complainant did not want the structure re-built and that the Complainant wanted the Respondent to return to the jobsite and remove and dispose of any and all construction debris from the collapsed shed and then return the construction site to its original state. 17. Credible testimony and evidence established that the Respondent declined to comply with the Complainant’s request to remove and dispose of the materials and return the construction site to its original state. 18. The Respondent testified that he was ready and willing to comply with the terms of the Corrective Work Order and properly fulfill the terms of his construction agreement with the Complainant had the Complainant given him an opportunity to do so. 19. The Complainant’s decision to not to have the Respondent rebuild the loafing shed and, instead, to request the Respondent remove the construction debris from his property and restore his property to its original condition, was shown to be reasonable and justified under the circumstances. 20. Credible testimony and evidence established that the Corrective Work Order was based largely on the written inspection report prepared by Ms. Pat Clingman, the Deputy Development Services Director for the local building authority. 21. Ms. Clingman’s written report (Exhibit No. R -8) provides, in relevant part, as follows; When I arrived, the most obvious issue was that the structure did not appear to have ANY CONSTRUCTION BRACING. The structure was basically a table. When looking at the nailing on the roof, it almost appeared that either a handyman or someone lacking in general construction knowledge had built it. The roof sheathing had not been laid out properly and was crooked as well as the nailing on the roof was sloppy and some nails had not been driven in, but rather just bent over. The spacing did not meet the 6/12 requirement and I would have failed the inspection had the structure been standing. When talking to Mrs. Carver, she told me that they had hired someone to do the work. On inspection of the anchor bolts, they were not even finger tight, and there were some that had different hardware on them than others. I could not inspect the h25s because the structure was on the ground. My conclusion was that it was poor workmanship and the lack of construction bracing that caused the collapse when Mr. Carver was nailing on the missing h25s. There was nothing to support the structure such as the attachment to the metal garage or the temporary bracing to provide a shear component. 22. Ms. Clingman testified that the building appeared to be out of square with some nails bent over and that there appeared to be no torque on the anchor bolts. 23. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s shed failed to comply with applicable industry and workmanship standards. 24. Credible testimony and evidence established that the spacing of the structure did not met the 6/12 requirement of the approved plans and specifications. 25. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct his own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor to remove the construction debris of the loafing shed from the Complainant’s property and restore the Complainant’s property to its original condition. 26. Credible testimony and evidence established that the Complainant received no value for the $3,000.00 that he paid the Respondent for the construction of the loafing shed. 27. The credible evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. § 32-1154A (23) (Failure to take appropriate corrective action). 28. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW

1. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154A (2) (Departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154A (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner. 2. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order

In view of the foregoing, it is recommended that the Respondent’s Class B- (No. 056122) License be revoked unless the Registrar of Contractors receives and accepts written proof that: 1) the Respondent has caused a properly licensed contractor of the Complainant’s choice to properly remove and dispose of the construction debris from the loafing shed from the Complainant’s property and then properly restore the Complainant’s property to its original condition; and 2) the Respondent has, as restitution, paid the Complainant the sum of $3,000.00 as reimbursement for the money paid by the Complainant for the construction of the collapsed loafing shed. It is further recommended that if the Respondent completes the above described corrective actions, on or before the effective date of this Order, then the above provided License revocation shall not take place and the Respondent’s Class B- License shall be suspended for a period of twenty (20) days to be followed by a ninety (90) day period of disciplinary probation. 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, August 6, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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