ALJDEC decisions subject to certification as final

2010A-26565220-ROC · Registrar of Contractors · 2010-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Richard Homes. 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 License No. B.043073-R issued by the Registrar of Contractors (Registrar). 2. This is a residential matter wherein pursuant to a written construction agreement the Respondent constructed a new two car garage with a guest house above the garage for the Complainant. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to her satisfaction despite her repeated requests that it do so. 4. The Complainant was also very dissatisfied with the construction costs associated with the building of the new garage and guest house. 5. There was no dispute that during the course of construction the parties developed a poor personal relationship and that the parties are uncomfortable around each other. 6. When the Respondent failed to resolve the construction problems with the new garage and guest house to her satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on March 24, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. There was no dispute that the items set forth in the Corrective Work Order fail to comply with applicable workmanship and industry standards and that all of the items listed in the Corrective Work Order require proper correction by the Respondent. 9. Credible testimony and evidence established that on March 26, 2010, April 1, 2010, and April 5, 2010, the Respondent attempted to gain access to the Complainant’s residence in order to comply with the terms of the Corrective Work Order. 10. Credible testimony and evidence established that on April 6, 2010, the Complainant contacted the Respondent and informed the Respondent that she would only allow the Respondent access to her residence to proceed with the directed corrective work if the Respondent first provided her with a written description of how the Respondent would correct the various workmanship deficiencies listed in the Corrective Work Order, and then only if she approved of the Respondent’s selected method of correction. 11. Credible testimony and evidence established that the Complainant had been informed that the Registrar does not specify methods of correction and does not delegate this selection process to the homeowner. Instead, the selection of the method of correction is left to the licensed contractor, which makes such selection at its peril. 12. Credible testimony and evidence established that corrective items set forth in the Corrective Work Order issued in this matter must be corrected to within applicable workmanship and industry standards. 13. The Complainant’s actions, in repeatedly denying the Respondent access to her residence because of her concerns regarding the Respondent’s selected method of repair, are found to be unreasonable. 14. In view of the denial of access, the credible evidence of record is found be insufficient to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (23). 15. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in its work. 16. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of her new garage and guest house 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, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 17. Both parties demonstrated an ongoing inability to effectively communicate or to properly schedule their onsite work and both repeatedly resorted to the use of Registrar’s personnel to act as intermediaries. This is not an appropriate agency function. The parties are fully capable of scheduling the directed corrective work without an intermediary. 18. Notice is taken of the Respondent’s good prior License record with the Registrar. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (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 that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, or provides proof that it has been denied reasonable access to the Complainant’s residence to perform the directed corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and the matter closed. 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, November 30, 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