ALJDEC decisions subject to certification as final

2010A-308472125-ROC · Registrar of Contractors · 2010-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Edward Prohl. The Respondent appeared through its attorney, Perry Casazza. 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 K-21 (No. 241687) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a written agreement with the Complainants wherein the Respondent agreed to act as a general contractor for the remodeling of the Complainants’ residence located at 20364 N. Pepka Dr., Maricopa Arizona. 3. There was no dispute that as part of the parties’ construction agreement the Complainants paid the Respondent for the performance of agreed upon construction work and that the Respondent would then directly pay the various subcontractors which actually performed the construction work on the Complainants residence. 4. During the course of construction the Complainants became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its workmanship to the Complainants’ satisfaction. 5. When the Respondent failed to comply with the Complainants’ repeated requests to correct its unsatisfactory workmanship the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 6, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 7. The Corrective Work Order provides, in relevant part, as follows: This contractor cannot do nor subcontract work not within the scope of his C-21 landscape and irrigation systems license, so should hire a properly licensed General contractor to complete the following work order: 1) Redo the floor tile sealant throughout the house as necessary where it is blotchy and inconsistent. 2) Install the sliding glass door blinds. 3) Remove construction debris from the patio pavers and anywhere else in the rear yard. 4) Complete and redo as needed all stucco crack repairs. 5) Repair all damaged cabinet toe kicks. 6) Redo poor drywall repair at kitchen ceiling. Note: Only item # 3 can be completed by D&L Landscape. 8. On May 7, 2010 the Complainants filed an addendum to their complaint. The assigned Agency Inspector then conducted a second onsite inspection and on May 24, 2010 the Inspector issued an Addendum to the Corrective Work Order. 9. The Addendum to the Corrective Work Order provides, in relevant part, as follows: Contractor to correct the following by appropriate means using a properly licensed general contractor: 1) Poor paint cut-ins to ceilings where necessary 2) Remove all paint drips on interior walls where necessary 3) Any defective floor tiles with holes and any lippage exceeding 1/32 of an inch 4) Seal all floors per contract 5) Remove tile sealer from walls in second bedroom and patio door 6) Correct paint splatter where necessary on the garage walls 7) Remove construction debris fron [sic] rear lawn

10. Credible testimony and evidence, presented at hearing, established that the Respondent has failed to comply with the terms of the Corrective Work Order and the Addendum to the Corrective Work Order. 11. Credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s Class K-21 (Landscaping and irrigation systems) License. 12. Credible testimony and evidence established that the Respondent’s construction work failed to comply with applicable workmanship and industry standards. 13. Credible testimony and evidence established that the Respondent failed to comply with the applicable provisions of A.R.S. § 32-1124 (B) (Display of license). 14. Credible testimony and evidence established that a large part of the Respondent’s failure to comply with the terms of the Corrective Work Order and the Addendum to the Corrective Work Order was due to the difficulty the Respondent and the Respondent’s representatives have had in reaching the Complainants. 15. Credible testimony and evidence established that when the formal complaint was filed the Complainants were spending time in Canada, Arizona and in Syria and were very difficult to reach. 16. The Complainants have now separated and Brenda Prohl lives full time in Canada and Edward Prohl lives at the residence located at 20364 N. Pepka Dr., Maricopa, Arizona and he spends every other month in Syria working.

17. 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 and 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 and the contractor’s representative must be given a reasonable opportunity to complete necessary remedial work. 18. In this matter the Respondent’s selected general contractor shall give the Complainants written notice of the dates and times that it wishes to gain access to the Complainants’ residence. If the date and time set forth in the written notice fails to fall within the period of time that Complainant Edward Prohl is in residence at the house located at 20364 N. Pepka Dr., Maricopa Arizona then the Complainant shall give the Respondent’s selected general contractor an alternative date and time where Edward Prohl would be in residence and that would be acceptable to the Complainants. 19. Notice is taken of the Respondent’s excellent 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- 1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) and A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee) and A.R.S. § 32-1154 (A) (13) (Failure in any material respect to comply with this chapter, Namely A.R.S. § 32-1124 (B) (Display of license). 2. Although a Corrective Work Order and an Addendum to the Corrective Work Order was issued in this matter no violation of the provisions of A.R.S. § 32-1154 (A) (23) was cited in the Citation and Complaint.

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed general contractor to fully comply with the terms and conditions of the written Corrective Work Order and Addendum to Corrective Work Order issued in this matter and that the Respondent has corrected all of its advertisements, contracts, business cards etc., to comply with the applicable requirements of A.R.S. § 32-1124 (B) (Display of license). It is further recommended that if the Respondent causes the proper 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. 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, December 10, 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