ALJDEC decisions subject to certification as final

2010A-20273866-ROC · Registrar of Contractors · 2010-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Tony Gutierrez. 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 License No. B.229412-R issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant to perform an extensive remodeling of the Complainant’s residence pursuant to the City of Scottsdale’s housing rehabilitation program. 3. There was no dispute that the Respondent was to be paid the total sum of $21,141.00 for the performance of the extensive remodeling work set forth in the parties’ written construction agreement. 4. There was no dispute that on July 16, 2009, the parties entered into a Change Order wherein the Respondent agreed to perform additional remodeling work on the Complainant’s residence for the additional sum of $3,035.00. 5. During the course of construction, the Complainant became very dissatisfied with the Respondent’s workmanship and the general condition of her residence and repeatedly complained to the Respondent. 6. The Complainant also began to experience health problems that she believed were caused by the Respondent’s construction work on her residence. 7. When the Respondent failed to resolve her complaints to the Complainant’s satisfaction, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order that directed the Respondent to perform designated corrective action on the Complainant’s residence. 9. The written Corrective Work Order provides, in relevant part, as follows: Contractor to correct by appropriate means the following. 1. Reimburse complainant the funds that were not use [sic] for the dishwasher. 2. Finish installing the trim pieces and finish the paint around the oven. 3. The exhaust hood vent above the stove, the contractor needs to reinstall the plastic piece that blocks the charcoal filter vent.

4. The cabinet door on the right side, above the exhaust hood the contractor chiseled out the face frame [sic] badly that the cabinet door won’t stay closed. 5. The step stool of the complainant was used to install an H.V.A.C. register, and was broken when used. 6. Contractor will honor a two year warranty with the Arizona Registrar of Contractors. 10. The assigned Agency Inspector testified that he had performed a prehearing inspection and found that item number 3 of the Corrective Work Order had not been fully complied with. 11. Credible testimony and evidence established that the Respondent has failed to reinstall the plastic piece that blocks the charcoal filter vent. 12. Credible testimony and evidence established that the Respondent has also failed to resolve item number 5 of the Corrective Work Order. 13. Credible testimony and evidence established that the Respondent inadvertently damaged the Complainant’s stepstool and that the Respondent is responsible for the proper repair or replacement of the damaged stepstool. 14. There was no credible evidence of an unreasonable denial of access by the Complainant. 15. The Complainant moved to amend her complaint on August 3, 2010, to include alleged problems with the installation of the new HVAC system in her residence. 16. On August 12, 2010, the Registrar of Contractors issued a Notice of Amendment which provides, in pertinent part, as follows: Notice is hereby given to Respondent that on or about August 3, 2010, Complainant filed a Request to Amend, a copy of which is attached hereto, the original December 1, 2009 Complaint Form to include alleged workmanship deficiencies involving “the air conditioning unit, ductwork, asbestos, gypsum [and] roofing….” The Registrar accepts such Amendment and its contents are incorporated into the original Complaint Form dated December 1, 2009. Respondent shall be deemed to have denied the allegations of the aforesaid Amendment to the Citation and Complaint, and Respondent need not file an additional Answer to such Amendment. Note: If a violation of A.R.S. § 32-1154(A)(23) was alleged in the July 13, 2010 Citation and Complaint, the contents of the Request to Amend will not be subject to such allegation, as such alleged deficiencies are not the subject of a Corrective Work Order. However, the assigned Registrar Inspector shall inspect the newly alleged workmanship deficiencies at a prehearing inspection and be prepared to testify as to his findings and observations at the hearing. 17. Credible testimony and evidence established the Complainant had also filed a formal complaint with the Registrar of Contractors (ROC Case No. 10-2786) against the Respondent’s HVAC subcontractor, Bull Dog Mechanical (License No. C39.222120-R), which installed the new HVAC system and duct work in her home. 18. There was no dispute that pursuant to the filing of the formal complaint against the HVAC subcontractor, an assigned Agency Inspector conducted an onsite inspection of the new HVAC system and on March 29, 2010, issued a written Corrective Work Order that directed the Respondent’s HVAC subcontractor, Bull Dog Mechanical, to perform directed corrective action on the Complainant’s HVAC system. 19. The Corrective Work Order (Exhibit No. R-3) issued to the Respondent’s HVAC subcontractor, Bull Dog Mechanical, provides, in relevant part, as follows: Contractor to correct by appropriate means the following. 1. The flex ducts that are connected to the air box, [sic] are loose or not connected properly. 2. The southeast flex duct that seems to supply a bedroom needs a coupling to connect properly. 3. The flex duct that is supplying the kitchen, [sic] is run under a collar tie and it is pinching the cut and restricting the air flow. 4. The contractor installed R-6 flex ducts in the attic. The 2009 code N1103.2.1 calls out supply ducts in attics shall be insulated to a minimum of R-8. 5. H.V.A.C. unit on roof was not sealed properly at base to keep water from penetrating into house. 20. Credible testimony and evidence established that License No. C39-222120- R issued to Bull Dog Mechanical was suspended by the Registrar of Contractors for non-renewal on August 1, 2010, and that Bull Dog Mechanical’s Class C-39R License was suspended again by the Registrar of Contractors on September 9, 2010, for non-compliance with an Order of the Registrar. 21. Credible testimony and evidence established that Bull Dog Mechanical Failed to comply with the terms of the Corrective Work Order that was issued to Bull Dog Mechanical to perform directed corrective work on the Complainant’s HVAC system. 22. Credible testimony and evidence established that when the Respondent’s HVAC subcontractor, Bull Dog Mechanical, failed to comply with the terms of the Corrective Work Order and had its contractor’s license suspended by the Registrar of Contractors, the Complainant retained an alternative HVAC contractor, ABS A/C Repair and Service, .L.L.C., to inspect the duct work in her residence. 23. A representative of ABS A/C Repair & Service, L.L.C., Allen B. Simpson, appeared at the hearing and testified that he conducted an onsite inspection of the Complainant’s then existing HVAC system and that during his inspection of the Complainant’s residence he found that the HVAC unit installed on the Complainant’s roof was not properly installed and that there were open holes in the attic and around the registers. 24. Mr. Simpson also inspected the new duct work in the Complainant’s residence and found that it had been performed in an unworkmanlike manner and that it failed to comply with applicable code requirements. 25. Credible testimony and evidence established that the Complainant then caused the duct work in her residence to be properly corrected by ABS A/C Repair & Service, L.L.C. 26. The Complainant’s actions, in retaining an alternative licensed contractor to inspect and then correct the duct work in her residence, were shown to be reasonable and justified under the circumstances. 27. There was insufficient credible evidence presented to support a finding of the Complainant’s cost of causing the duct work to be corrected by the alternative licensed HVAC contractor. 28. Credible testimony and evidence established that the alternative HVAC contractor was not able to finish all of the needed corrective work on the Complainant’s residence due to limitations on its contractor’s license. 29. Credible testimony and evidence established that further corrective action is required on the Complainant’s residence in order to bring the Complainant’s roof and interior drywall and ceilings to within applicable workmanship and industry standards. 30. Credible testimony and evidence established that the HVAC system installed by the Respondent’s subcontractor, Bull Dog Mechanical, failed to comply with applicable workmanship and industry standards and that it failed to comply with applicable code requirements. 31. Credible testimony and evidence established that the Respondent is fully responsible for the errors and omissions of its selected subcontractors. 32. Credible testimony and evidence established that the Respondent is not responsible for any work on the HVAC system that has been performed by ABS A/C Repair and Service, L.L.C. 33. The Complainant also had two different environmental inspections performed on her residence. 34. The Microbial Inspection Report issued by JRM Environmental, Inc. (Exhibit No.C-1A) provides, in pertinent part as follows: The air testing indicated that there was elevated levels [sic] of fiber glass [sic] throughout the house. The visual inspection indicated there was note [sic] no duct tape on seems [sic] and holes in HVAC system. In addition it was reported that asbestos containing sprayed on acoustical was removed without proper emission control. The sampling and visual inspection completed during the site visit indicates that remediation is necessary. Recommendations 1. Install duct tape and repair leaks in HVAC system 2. Clean hvac system and coils, fan 3. Hepa vac [sic] and wet wipe and clean interior residence …. Remediation …. The remediation should be conducted by qualified, certified, experienced remediation specialist. This dose [sic] not include general contractors, handymen or maintenance personnel. JRM will accept remediation performed by qualified, certified, experienced remediation contractors only. Work done by non qualified personnel will not qualify for post remediation certification. 35. The environmental inspection report performed by Russell B. Olinsky, M.S., provides, in relevant part, as follows: OBSERVATIONS/DISCUSSION: The roof mounted heating and air conditioning unit had exposed fiberglass insulation inside that was frayed on the sides where it was cut. There were high quantities of fine fiberglass fibers visible of [sic] many surfaces inside the unit. This insulation will release fine, respirable fibers. There was rust inside the condensate pan indicting that the air conditioning was used in the past. The return air duct, located in the ceiling, had gaps around the folded sheet metal tabs that were connected to the above flex duct going to the roof unit. In the attic there were gaps in the sheet metal rings where the connected flex ducts were crimped to the distribution box….

RECOMMENDATIONS: 1. Have the air gaps in the heating and air conditioning system sealed. 2. Have the problem with the restrictions in the attic flex ducts corrected. 3. Have the exposed edges of the fiberglass insulation sealed so that it does not shed fine, respirable fibers. 4. Have the home professionally cleaned, including the heating and air conditioning system, blower, coils, condensation pan and ductwork to help remove fiberglass fibers, soot particles and possible mold spores. 5. Have the home reinspected after repairs are completed to ensure that they were thorough. 6. Have this report sent to your physician. 36. Mr. Olinsky, M.S., appeared and testified at the hearing in support of his written findings. Mr. Olinsky testified that he found, and personally observed, unusual amounts of fiberglass in the Complainant’s residence. 37. Credible testimony and evidence established that the work of the Respondent’s selected subcontractor, Bull Dog Mechanical, was far below applicable workmanship and industry standards and that it failed to comply with applicable code requirements. 38. Credible testimony and evidence established that as a direct result of the very poor work performed by Bull Dog Mechanical, small pieces of fiberglass have been blown throughout the Complainant’s residence. 39. The Respondent is found to be fully responsible for the proper cleanup of the Complainant’s residence as recommended by JRM Environmental, Inc., and Mr. Russell b. Olinsky, M.S. 40. Credible testimony and evidence established that during the course of construction work, and the repeated inspections of the Complainant’s residence, the parties have developed an extremely antagonistic personal relationship and have a near inability to effectively communicate with each other. 41. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its 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 properly licensed contractors of the Complainant’s choice to properly complete the corrective work on her residence and that the Respondent cause a properly licensed remediation specialist of the Complainant’s choice to properly clean the Complainant’s residence as recommended in the two submitted environmental reports (Exhibit Nos. 1A and 1B). 42. Notice is taken of the Respondent’s prior excellent 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) (2) (Departure from or disregard of applicable building codes), A.R.S. § 32-1154 A) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. No violation is found of the provisions of A.R.S. § 32-1154 (A) (23) for the items set forth in the Notice of Amendment. RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License No. B.229412-R be suspended until the Registrar of Contractors receives and approves written proof that the Respondent has caused the following corrective actions to be properly performed: 1. Respondent has caused a properly licensed roofing contractor of the Complainant’s choice to properly correct the Complainant’s roof, including the proper sealing of all holes in the roof caused by the improper installation of the HVAC system. 2. Respondent has caused a properly licensed contractor of the Complainant’s choice to properly perform all necessary corrections to the Complainant’s ceiling and interior drywall and repair the damage to the Complainant’s insulation caused by the improper installation of the initial duct work in the Complainant’s residence. 3. Respondent has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms and conditions of the written Corrective Work Order issued to the Respondent in this matter. 4. Respondent has caused a properly licensed remediation specialist of the Complainant’s choice to properly clean the Complainant’s residence as recommended by the JRM and Olinsky environmental reports. It is further recommended that if the Respondent properly causes the accomplishment of the above described corrective actions, 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, October 8, 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