ALJDEC decisions subject to certification as final

2010A-308474336-ROC · Registrar of Contractors · 2011-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Joel Winston Jarrette. 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 KB-2 (No. 211385) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed an extensive remodeling of the Complainant’s residence. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to properly correct its work to the Complainant’s satisfaction despite repeated requests that the Respondent do so. 4. There was no dispute that Respondent issued a letter to the Complainant stating that the construction project had been completed. 5. Credible testimony and evidence established that the Complainant construed the Respondent’s letter as an abandonment of an unfinished construction project. 6. The credible testimony and evidence of record is insufficient and fails to support a find that the Respondent refused to perform or abandoned the Complainant’s construction project. 7. Based upon his belief that the Respondent had abandoned the construction project, the Complainant then retained alternative contractors to correct portions of the Respondent’s unsatisfactory work and filed a formal Complaint against the Respondent with the Registrar of Contractors seeking proper correction of the remaining uncorrected items and seeking monetary damages for his costs of repair. 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 directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. The Corrective Work Order provides, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1b. Dog door not provided: Needs to be install [sic], specified in contract. 8a. Family room fire place tile uneven: Several tiles need to be properly installed. 10. The assigned Agency Inspector found the remaining items of the Complaint to have either been corrected by the Complainant prior to the inspection, items for which the assigned Agency Inspector could not determine the extent of the Contractor’s liability, or items for which there was insufficient evidence to show that the items failed to comply with applicable workmanship and industry standards. 11. There was no dispute that the dog door was eliminated from the parties’ contract and that the Complainant is not seeking the installation of a dog door. 12. The Complainant is seeking a monetary offset or credit based upon the elimination of the dog door from the construction agreement. 13. Credible testimony and evidence established that on August 6, 2010, the Respondent sent the Complainant a letter indicating that the Respondent would inspect the tiles on the fireplace face at the Family Room fireplace and remove and reset and re-grout those tiles that the Respondent determined to be uneven. 14. Credible testimony and evidence established that the Complainant then caused the family room fire place to be corrected by an alternative contractor. 15. There was no dispute that the alternative contractor went far beyond merely correcting the uneven tiles. 16. Credible testimony and evidence established that there is no exact money amount set forth in the parties’ construction agreement for the cost of the dog door. The Complainant’s claim for a monetary credit or offset will require a money adjudication as to the actual monetary cost of the dog door that was eliminated from the construction project. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to comply the terms of the written Corrective Work Order issued in this matter. 18. The Complainant is seeking money damages for his costs of correcting the speaker wiring in the sum of $140.00, his costs for the installation of the dishwasher in the sum of $84.00, his costs for correcting the fireplace in the sum of $808.49, his costs for correcting the main drain in the sum of $210.79, his costs for a grout repair in the sum of $600.00, and his costs for correcting the pocket doors in the sum of $3,414.24. 19. The credible evidence of record is insufficient and fails to support a finding that the above items required correction before the assigned Agency Inspector had an opportunity to inspect the above stated items prior to their correction. 20. The Complainant may pursue his claim for monetary damages in a civil court of competent jurisdiction. 21. Credible testimony and evidence established that the Respondent left numerous spots of paint and installation glue on the Complainant’s bamboo flooring. 22. Credible testimony and evidence established that the Respondent’s installation of the Complainant’s bamboo flooring failed to comply with applicable workmanship and industry standards. The Respondent shall properly cause the Complainant’s bamboo flooring to be properly corrected. 23. Credible testimony and evidence established that the powder room countertop is not installed in accordance with applicable plans and specifications and requires proper correction. 24. The Respondent shall cause the powder room countertop to be properly corrected. 25. Credible testimony and evidence established that the master bath countertops were installed with cracks in them. 26. Credible testimony and evidence established that the master bath countertops fail to comply with applicable workmanship and industry standards and that the master bath countertops require proper correction. 27. The Respondent shall cause the master bath countertops to be properly corrected. 28. Credible testimony and evidence established that the master bath shower thermal control valve is improperly installed and presents a health and safety danger. The Respondent shall cause a properly licensed plumbing contractor to promptly correct the installation of the master bath shower thermal control valve. 29. Undisputed credible testimony and evidence established that the Respondent failed to apply touchup paint to exterior stucco work around the windows of the Complainant’s residence. The Respondent shall cause the exterior stucco work to be properly painted. 30. Credible testimony and evidence established that the Respondent’s owner lost his temper and behaved in an inappropriate manner in the Complainant’s residence and that consequently, the Complainant’s wife is afraid of the Respondent and unwilling to allow the Respondent back into her residence. 31. Credible testimony and evidence established that the Complainant’s wife’s apprehension about the Respondent based upon the Respondent’s behavior in her residence is reasonable and justified under the circumstances. 32. 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 homeowners. 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 Respondent cause another properly licensed contractor to properly correct the Complainant’s bamboo flooring, the powder room countertop, the master bath countertops, and the painting of the exterior stucco work. 33. Notice is taken of the Respondent’s excellent prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437- 38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. The credible evidence of record was insufficient and failed to support a finding in support of the charged violations of the provisions of the A.R.S. § 32-1154 (A) (1) (Abandonment) or A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action). 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

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 be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainant’s choice to fully correct the countertop in the Complainant’s powder room, the bamboo flooring throughout the Complainant’s residence, the cracked master bath countertops, and the painting of the exterior stucco work, and that the Respondent has caused a properly licensed plumbing contractor of the Respondent’s choice to fully correct the master bath shower thermal control valve.. It is further recommended that if the Respondent properly causes a properly licensed contractor of the Complainant’s choice to accomplish the correction of the powder room countertop, the bamboo flooring, the master bath countertops, and the painting of the exterior stucco work, and the Respondent causes a properly licensed plumbing contractor of the Respondent’s choice to fully correct the master bath shower thermal control valve, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall 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, March 31, 2011.

/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