ALJDEC decisions subject to certification as final

2010A-308477860-ROC · Registrar of Contractors · 2011-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LIMITED HEARING: July 1, 2011, at 8:00 a.m. APPEARANCES: Complainants Michelle and Albert Carlotti appeared on their own behalf; Respondent Tenney Trim, Inc. appeared through Travis N. Tenney, its qualifying party and officer; Respondents Tuccino Enterprises, Inc., Anthony Paul Taylor, Jr. dba Taylor Floor Installations, and E E E Custom Structures, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In July 1990, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC086907, Class C-8 for residential floor covering to Anthony Paul Taylor doing business as (“dba”) Taylor Floor Coverings (“Taylor Floor”). Taylor Floor’s address of record is 3143 North 77th Street, Mesa, Arizona 85207-1277. In June 1997, the Registrar issued License No. ROC124872, Class B for residential general contracting to R F M Contracting, Inc. (“R F M”). In April 2002, the Registrar issued License No. ROC173302, Class B for residential general contracting to Tuccino Enterprises, Inc. (“Tuccino”). Tuccino’s address of record is 27847 North 78th Street, Scottsdale, Arizona 85266-9233. In November 2002, the Registrar issued License No. ROC179880, Class B for residential general contracting to Tenney Trim, Inc. (“Tenney Trim”). In January 2005, the Registrar issued License No. ROC202910, Class KB-2 for dual residential and small commercial general contracting to E E E Custom Structures, L.L.C. (“E E E”). E E E’s address of record is P.O. Box 5797, Mesa, Arizona 85211-5797. On October 13, 2009, the Registrar received a complaint from Dr. Michelle Carlotti[1] regarding R F M’s construction as general contractor of her residence at 10227 E. Windrunner Drive, Scottsdale, Arizona (“the residence”). Dr. Michelle Carlotti crossed out the words, “Move-in date,” on the complaint form and wrote, “C of O,” and the date, “12-18-2008.” The Registrar designated the first complaint against R F M as Case No. 10- 1396, and later redesignated the complaint as Case No. 2010-13969445. The Registrar’s inspector, Scott Deering, investigated the initial items of complaint and four addenda to the initial complaint that Dr. Michelle Carlotti or her husband, Dr. Albert Carlotti, made that alleged additional items of complaint. Inspector Deering issued three Corrective Work Orders (“CWOs”) in Case No. 2010-13969445 on December 14, 2009, January 22, 2010, and February 23, 2010. The February 23, 2010 CWO addressed three addenda to the complaint. The Registrar referred Case No. 2010-13969445 to the Office of Administrative Hearings (“the OAH”) for an evidentiary hearing. Administrative Law Judge (“ALJ”) Eric A. Bryant conducted six days of hearing on the original complaint and Complainants’ four addenda to the complaint. ALJ Bryant issued a recommended decision on Dr. Michelle Carlotti’s original complaint and the four addenda against R F M in Case No. 2010- 13969445, and the Registrar’s adopted ALJ Bryant’s decision. Five days after the Registrar issued the final order in Case No. 2010-13969445, Dr. Michelle Carlotti’s and R F M’s attorneys submitted a stipulation to close the complaint pursuant to their confidential settlement. On December 19, 2010, Dr. Michelle Carlotti or her husband, Dr. Albert Carlotti, sent to the Registrar via facsimile five complaints against R F M and its subcontractors, Tuccino, Taylor Floor, Tenney Trim, and E E E. The move-in date on Dr. Albert Carlotti’s complaints against R F M and Tenney Trim was 12-19-2008. The close of escrow dates on Dr. Albert Carlotti’s complaint against R F M and Tenney Trim were, respectively, December 2008, and December 29, 2008. Dr. Michelle Carlotti did not provide a move-in date or close of escrow date on her complaints against Tuccino, Taylor Floor, and E E E. Both Complainants signed their complaints, verifying “[u]nder penalty of law, . . . that the information given in this complaint is true to the best of my knowledge.” Because December 19, 2010, was a Sunday, the Registrar did not receive Complainants’ complaints until December 20, 2010. The Registrar designated the complaints against Tuccino, R F M, Taylor Floor, Tenney Trim, and E E E as, respectively, Case Nos. 2010-[number redacted], 2010-[number redacted], 2010-[number redacted], 2010-[number redacted], and 2010-[number redacted]. Complaint Item No. 2 against R F M in Case No. 2010-[number redacted] was that “[t]he second floor (after truss repair) is sagging again more than ¼”.” The Registrar assigned Case Nos. 2010-[number redacted], 2010-[number redacted], 2010- [number redacted], 2010-[number redacted], and 2010-[number redacted] to Inspector Deering for investigation. The fact that at least two of the complaints stated move-in dates were more than two years before the Registrar received the complaints was a “red flag” to Inspector Deering. On or about January 7, 2011, R F M’s attorney sent a facsimile to Inspector Deering, to which she attached documents to support her assertion that Complainants moved into their residence on December 17, 2008. The documents included the following: (1) A printout of an e-mail chain between Dr. Albert Carlotti and R F M, dated December 8, 2011, announcing a firm date of December 17, 2008, for move-in; (2) An approval from the City of Scottsdale building inspector dated December 17, 2008, that construction on the house was sufficient for move-in; (3) The Certificate of Occupancy from the City of Scottsdale, dated December 19, 2008; and (4) A U-Haul Equipment Contract to R F M as customer for trunk rental on December 17, 2008, from Rim Country Storage in Payson, Arizona to a destination in Scottsdale that the attorney stated was “used to move [Complainants] into the home on that date.” After Inspector Deering forwarded R F M’s attorney’s letter to Complainants, Dr. Michelle Carlotti sent a letter to the Registrar, stating that although R F M had promised a move-in date of December 1, 15, and 17, 2008, cleaning of the residence was not completed until December 23, 2008. Dr. Michelle Carlotti stated that because her youngest daughter has severe asthma, her family was not able to move into the residence until December 24, 2008, after cleaning was complete. On January 18, 2011, Inspector Deering performed a jobsite inspection on Complaint Item No. 2 of the complaint against R F M in Case No. 2010- [number redacted]. Because R F M’s truss repair did not conform to the Registrar’s and industry standards, Inspector Deering ordered R F M to correct the truss. On April 21, 2011, the Registrar issued a Notice in Case No. 2010- [number redacted], informing R F M that Complaint Item No. 2 would move forward with the issuance of a Citation and Complaint, but that the remaining complaint items would be referred to the OAH with the complaints against R F M’s subcontractors in Case Nos. 2010-[number redacted], 2010-[number redacted], 2010- [number redacted], and 2010-[number redacted] on the issue of whether the complaints were time-barred. On April 21, 2011, the Registrar issued a Notice in Case Nos. 2010- [number redacted], 2010-[number redacted], 2010-[number redacted], 2010-[number redacted], and 2010- [number redacted], concerning the timeliness of Complainants’ complaints, in relevant part as follows: On or about December 20, 2010, the named Complainants in these matters filed Complaints with the Registrar alleging that the named Respondents engaged in conduct in violation of A.R.S. 32-1154(A). Based upon a preliminary review of the files in these matters, it appeared that the Complaints were not timely filed in accordance with A.R.S. 32-1155(A).

A.R.S. 32-1155(A) provides the following:

“Upon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation may issue a citation . . . . The two year period prescribed by this section shall commence on the earlier of the close of escrow or actual occupancy for new home or other building construction and otherwise shall commence on completion of the specific project.”

Subsequent to the filing of the original Complaints, Complainants and Counsel for Respondent [R F M] submitted written documentation with the Registrar regarding the date of “actual occupancy” and raising factual issues as to whether or not these Complaints were timely field [sic]. Members of the Registrar’s Legal and Compliance Departments reviewed the submissions, conferred on these matters and concluded that a factual dispute exists as to (1) what constitutes “actual occupancy” and (2) when did “actual occupancy” occur. Because a factual dispute exists, the Registrar maintains that such issues are best determined after the presentation of evidence and testimony at an administrative hearing.

Thus, the Registrar is referring these matters to the [OAH] and requests that a limited hearing bet [sic] set at which time the parties can present evidence and testimony before an Administrative Law Judge as to the issues involving actual occupancy. . . .

(Emphasis in original; footnote omitted.) On May 31, 2011, the Registrar issued Notices of Limited Rehearing in Case Nos. 2010-[number redacted], 2010-[number redacted], 2010-[number redacted], 2010-[number redacted], and 2010-[number redacted]. In each case, the Registrar mailed the Notice of Limited Rehearing to the charged Respondent’s address of record. A consolidated limited hearing was held on July 1, 2011. Inspector Deering testified. At the beginning of the hearing, Complainants informed the Administrative Law Judge that they had entered into a confidential settlement to resolve their complaint in Case No. 2010-[number redacted] against R F M, including Complaint Item No. 2, in return for its release to pursue their various complaints against its subcontractors. Complainants testified on the timeliness of their complaints and submitted eight exhibits. Tenney Trim’s qualifying party, Travis N. Tenney, testified on the untimeliness of Dr. Albert Carlotti’s complaint against Tenney Trim and submitted two exhibits. Tuccino, Taylor Floor, and E E E did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow these Respondents additional travel time, they did not appear, personally or through an authorized member, officer, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Tuccino, Taylor Floor, and E E E did not present any additional evidence to establish that Complainants’ complaints were untimely. Inspector Deering testified that Complainants’ complaints in Case Nos. 2010-[number redacted], 2010-[number redacted], 2010- [number redacted], and 2010-[number redacted] would be timely if Complainants either filed the complaints less than two years after they moved into the residence, or the subcontractor performed work at the residence less than two years before Complainants filed the complaints and the specific complaint involved the subcontractors’ recent work. Complainants’ Evidence of Move-In Date The City of Scottsdale issued the Certificate of Occupancy for Complainants’ residence on December 19, 2008. The Certificate of Occupancy provided that “[n]o building or structure shall be used or occupied . . . until the building official has issued a certificate of occupancy therefore as provided herein.” Dr. Michelle Carlotti testified that she and her husband considered the date that the Certificate of Occupancy was issued to be a “benchmark” that they used to mark all other significant dates. Complainants submitted an invoice dated December 22, 2008, from Sunland Cleaning Services to R F M for the “final cleaning” of the interior, exterior perimeter concrete and Terrazzo Stone, and interior and exterior of windows for the service period from December 15, 2008, to December 19, 2008. Dr. Michelle Carlotti testified that she and her family moved into the residence on December 24, 2008. Dr. Michelle Carlotti testified that the U-Haul Equipment Contract that R F M’s attorney provided to the Registrar was for bed frames that were in storage in Payson, and not for all of Complainants’ furniture. / / / / The CWOs in Case No. 2010-13969445 and Specific Complaints against Tuccino, Taylor Floor, and E E E Case No. 2010-[number redacted] against Tuccino Dr. Michelle Carlotti’s complaint against Tuccino alleged five specific items: (1) “Multiple & too many to list cracks on home & walkways”; (2) “Multiple & too many to list voids or areas that are short-[illegible] a void and perceptible block or framing”; (3) Poor color matching of previous repairs from [CWOs] against [R F M]”; (4) “Overcharged – original bid states ‘All walls’ and proceeded to claim walls had been raised”; and (5) “Failure to confirm proper control &/or expansion joints prior to stuccoing over resulting in exaggerated cracks.” Complaint # 2 F of Addendum #1-B to the February 23, 2010 CWO in Case No. 2010-13969445 required R F M to “[r]epair stucco at east wall jack of balcony.” The CWO did not require R F M to take any action with respect to Complaint # 2 H, “random paint touch-up” to the stucco walls. Complaint # 6 of Addendum # 3 to the February 23, 2010 CWO in Case No. 2010-13969445 required R F M to correct the “many cracks that have not been repaired” in the exterior stucco “per the Registrar of Contractors workmanship standards.” Case No. 2010-[number redacted] against Taylor Floor Dr. Michelle Carlotti’s complaint against Taylor Floor alleged three specific items: (1) “excessive tile cracks on pool decking and outdoor patios”; (2) “excessive lipping, cracking, crumbling, pitting tiles in family room, kitchen, garage entry landing, powder bath, library bath, master bathroom floor”; and (3) “voids or grout loss on/at many tile [sic] to cabinet/wall thresholds due to poor craftsmanship.” Complaint # 5 on the December 14, 2009 CWO in Case No. 2010-13969445 required R F M to correct the “[e]xcessive lipping of floor tiles . . . .” Complaint #6 on the December 14, 2009 CWO found that R F M had corrected prior to the jobsite inspection “[e]xterior Marbella tiles [that were] excessively cracking and staining due to not being appropriately sealed.” Complaint # 5 of Addendum #2 to the February 23, 2010 CWO in Case No. 2010-13969445 required R F M to correct three cracked exterior Marbella tiles by the outdoor dining/sport court. Case No. 2010-[number redacted] against E E E Dr. Michelle Carlotti’s complaint against E E E alleged six specific items: (1) “cut roof trusses over south children room & play room”; (2) “cut & failed to assure proper support under master tub”; (3) “cut & failed to confirm proper truss package received to support master fireplace”; (4) “failed to adequately secure Juliet balcony(s) off Master, North child room & master closet”; (5) “failed to build/frame in accordance with plans & specifications resulting in a near failure of the 2nd story”; and (6) “Was working on our home with a suspended license.” The December 14, 2009 CWO in Case No. 2010-139694 required R F M “to obtain a city permit and provide required inspections” on Complaint # 1, the floor truss repair below the master bedroom fireplace, and Complaint # 2, the cut roof trusses. Timeliness of Specific Complaints against Tenney Trim in Case No. 2010- [number redacted] Dr. Albert Carlotti’s complaint against Tenney Trim alleged that exterior doors to the west second-story balcony, the master bedroom patio, the north center courtyard, the south family room patio, the west courtyard, and the west guesthouse did not lock/close properly. Item # 9 of the January 22, 2010 CWO in Case No. 2010-13969445 required R F M to correct damage to interior doors in the pantry, master bedroom, and library bath, and to an exterior Dutch door to the playground. No other item on any of the three CWOs concerned interior or exterior doors. Mr. Tenney submitted Tenney Trim’s invoices for the job to R F M that were dated July 17, 2008, August 30, 2008, October 23, 2008, October 31, 2008, and December 4, 2008. Mr. Tenney testified that Tenney Trim performed the work before it submitted the invoices to R F M. Mr. Tenney testified that Tenney Door is the supply company that provided the exterior doors that Tenney Trim installed at Complainants’ residence. Mr. Tenney testified that he consulted Rob Myer, R F M’s qualifying party, and Mr. Myer said that Arizona Window Pro provided and R F M installed the Windsor doors at issue in Case No. 2010-13969445. Mr. Tenney testified that Tenney Trim was not asked to and did not perform any work at Complainants’ house as a result of the CWOs that the Registrar issued in Dr. Michelle Carlotti’s complaints against R F M in Case No. 2010-13969445. Complainants submitted a sign-in sheet for the subcontractors who came to their residence to perform corrective work pursuant to the CWOs issued in Case No. 2010-13969445 against R F M. Neither Mr. Tenney’s nor Tenney Trim’s names were on the sign-in sheets. Dr. Michelle Carlotti testified that Mr. Myer had testified at the hearing in Case No. 2010-13969445 that Tenney Trim performed work to comply with the CWOs that the Registrar issued in that case. Inspector Deering testified that Dr. Albert Carlotti’s specific items of complaint against Tenney Trim in Case No. 2010-[number redacted] involved poor adjustment of the exterior doors that prevented them from locking or closing properly, and that the Registrar considers adjustment of doors to be an owner maintenance issue after the first year of occupancy.[2] CONCLUSIONS OF LAW If Complainants filed the complaints at issue in these matters more than two years after the date of their “actual occupancy” of their new home, as required by A.R.S. § 32-1155(A), the late filings would deprive the Registrar of jurisdiction to investigate or consider the complaints.[3] Because jurisdiction cannot be waived, an administrative agency may on its own motion consider whether it has jurisdiction to investigate or consider a claim or complaint.[4] The Registrar’s statutes in Title 32 do not define what “actual occupancy” means in A.R.S. § 32-1155(A). Where a term is not specifically defined by statute, the term must be given its ordinary meaning, and its definition must be sufficiently clear to be easily understood by the common man.[5] Most people would understand the date of “actual occupancy” as the date that a person moves into and starts occupying a residence.[6] Under these authorities, the date of Complainants’ actual occupancy is when they moved into the residence and started residing there. Complainants’ second confidential settlement with R F M in Case No. 2010- [number redacted] effectively eliminated any witnesses other than themselves who had first-hand knowledge of the date that they moved into their residence.

A homeowner’s determination and disclosure of the date that he moves into his residence should not involve complex definitions or complicated calculations. Nonetheless, Dr. Michelle Carlotti has resisted providing her family’s move-in date since she first started making complaints to the Registrar. Dr. Michelle Carlotti’s statement in her letter to the Registrar in response to R F M’s attorney’s evidence that the complaints were untimely is the first time that the date, December 24, 2008, appeared anywhere in any of these six complaints, despite the Registrar’s repeated requests on each of the complaint forms that this information be provided. A move-in date of December 24, 2008, is contradicted by the move-in dates that Dr. Albert Carlotti furnished under penalty of law on his complaints against R F M in Case No. 2010-[number redacted] and Tenney Trim in Case No. 2010- [number redacted]. Moreover, Complainants’ own evidence indicates that the residence was clean and ready for move-in on December 19, 2008, when Sunland Cleaning Services completed the final cleaning and the Certificate of Occupancy was issued, and that at least some of the furniture was delivered to the residence on December 17, 2008. Based on the entire record in this case, Dr. Michelle Carlotti’s testimony concerning Complainants’ move-in date was not credible, and it is more likely than not that Complainants moved into the residence on or before December 19, 2008. Their new complaints filed on December 19 or 20, 2010,[7] that were not included in their initial complaint and four addenda in Case No. 2010-13969445 were filed more than two years after the date that they actually occupied the residence. Therefore, their new complaints are time-barred. Performance of corrective work after December 19, 2008, by Tuccino, Taylor Floor, or E E E would cause the limitations period to commence again if the specific corrective work was deficient.[8] Therefore, Complainants’ complaints that are based on inadequate repairs of items that were on the CWOs in Case No. 2010-13969445 are not time-barred if the subcontractors, rather than R F M, performed the repairs.[9] Those items of complaint may include the following: (1) Items #1 and #3 in Dr. Michelle Carlotti’s complaint in Case No. 2010-[number redacted] against Tuccino; (2) Items #1 (insofar as the repair of the three cracked exterior Marbella tiles are concerned) and #2 in Dr. Michelle Carlotti’s complaint in Case No. 2010-[number redacted] against Taylor Floor; and (3) Items #1, #2, and #3 in Dr. Michelle Carlotti’s Complaint in Case No. 2010-[number redacted] against E E E. The Administrative Law Judge makes no recommendation whether Tuccino, Taylor Floor, and E E E repaired these items, or the effect of Complainants’ confidential settlements with R F M in Case Nos. 2010-13969445 and 2010- [number redacted] on these subcontractors’ potential liability. With respect to Case No. 2010-[number redacted], Tenney Trim established that it has no potential liability because it did not perform any repairs after December 19, 2008, and that Dr. Albert Carlotti’s complaint for exterior door adjustments is untimely because it was filed more than one year after the date of occupancy. / / / / / / / / RECOMMENDED ORDERS Case No. 2010-[number redacted] It is recommended that on the effective date of the Registrar’s order, the Registrar dismiss Case No. 2010-[number redacted] against Tenney Trim, Inc.’s License No. 179880. Case No. 2010-[number redacted] It is recommended that on the effective date of the Registrar’s order, the Registrar open an investigation in Case No. 2010-[number redacted] into three issues: (1) Whether Tuccino Enterprises, Inc., License No. 173302 repaired the exterior stucco at Dr. Michelle Carlotti’s residence after December 19, 2008; (2) If so, whether Tuccino’s repairs were deficient; and (3) If Tuccino’s repairs were deficient, whether R F M Contracting, Inc.’s two confidential settlements with Drs. Michelle and Albert Carlotti in Case Nos. 2010-13969445 and 2010-[number redacted] bars Dr. Michelle Carlotti’s prosecution of her complaint against Tuccino. It is further recommended that Dr. Michelle Carlotti’s complaint Items #2, #4, and #5 against Tuccino in Case No. 2010-[number redacted] be dismissed. Case No. 2010-[number redacted] It is recommended that on the effective date of the Registrar’s order, the Registrar open an investigation in Case No. 2010-[number redacted] into three issues: (1) Whether Anthony Paul Taylor, Jr. dba Taylor Floor Installations, License No. 086907 repaired the excessive lippage of interior floor tiles and the three exterior cracked Marbella tiles at Dr. Michelle Carlotti’s residence after December 19, 2008, (2) If so, whether Taylor Floors’ repairs were deficient; and (3) If Taylor Floors’ repairs were deficient, whether R F M Contracting, Inc.’s two confidential settlements with Drs. Michelle and Albert Carlotti in Case Nos. 2010- 13969445 and 2010-[number redacted] bars Dr. Michelle Carlotti’s prosecution of her complaint against Taylor Floors. It is further recommended that Dr. Michelle Carlotti’s complaint Item #3 against Taylor Floor In Case No. 2010-[number redacted] be dismissed. Case No. 2010-[number redacted] It is recommended that on the effective date of the Registrar’s order, the Registrar open an investigation in Case No. 2010-[number redacted] into three issues: (1) Whether E E E Custom Structures, L.L.C., License No. 202910 repaired the floor truss under the master bedroom fireplace or the cut roof trusses at Dr. Michelle Carlotti’s residence after December 19, 2008; (2) If so, whether E E E’s repairs where deficient; and (3) If E E E’s repairs were deficient, whether R F M Contracting, Inc.’s two confidential settlements with Drs. Michelle and Albert Carlotti in Case Nos. 2010-13969445 and 2010-[number redacted] bars Dr. Michelle Carlotti’s prosecution of her complaint against E E E. It is further recommended that Dr. Michelle Carlotti’s complaint Items #4 and #5 against E E E in Case No. 2010-30847860 be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Orders will be 40 days from the date of that certification. Done this day, July 21, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Michelle Carlotti and Albert Carlotti are both medical doctors and dentists. Collectively, they are referred to “Complainants” and individually as either “Dr. Michelle Carlotti” or “Dr. Albert Carlotti,” as appropriate. [2] See Workmanship Standards for Licensed Contractors at 2, “General Statements” (February 2009). [3] See Harrelson v. Industrial Commission of Arizona, 144 Ariz. 369, 371, 697 P.2d 1119, 1121 (App. 1985) (untimely filed administrative claim deprived agency of jurisdiction to consider merits of claim); Attorney General Opinion I79-088 (March 28, 1979) (Registrar must act on and issue citation in complaints that meet “jurisdictional requirements” of A.R.S. § 32-1155(A)). [4] See Bruce v. State, 126 Ariz. 271, 272, 614 P.2d 813, 814 (1980) (Even where the parties do not question a tribunal’s jurisdiction, “an appellate court will consider jurisdictional questions sua sponte. . . . Jurisdiction cannot be waived and may be raised at any stage of the proceedings.”). [5] A.R.S. § 1-213; State v. Limpus, 128 Ariz. 371, 375-76, 625 P.2d 960, 964-65 (App. 1981). [6] See Rorebeck v. Criste, 1 Ariz. App. 1, 5-6, 398 P.2d 678, 681 (App. 1965) (“actual occupancy” for purposes of adverse possession). [7] Because the deadline for Complainants to file new complaints was December 18, 2010, it does not matter whether they filed the new complaints on December 19, 2010, when they sent the complaints via facsimile, or December 20, 2010, when the Registrar received the complaints. [8] See Attorney General Opinion I79-119 (April 25, 1979) (“[I]t is possible that the repair work, if performed, may in and of itself give rise to an independent claim for which the applicable statute of limitations may again begin to run.”). [9] See A.R.S. § 32-1155(C)(3) (the Registrar shall not issue a citation against a contractor if its work has been subject to modification by another).

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