ALJDEC decisions subject to certification as final

2010A-4088693-ROC · Registrar of Contractors · 2010-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Dolores Gomez. The Respondent appeared through its authorized representative, Richard Hamilton. 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-3.234328-R issued by the Registrar of Contractors. 2. This is a residential matter wherein the Respondent entered into a construction agreement with the Complainants for an extensive remodeling of the Complainants’ residence for the total sum of $37,196.88. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to return to their residence and properly correct its work despite repeated their requests that the Respondent do so. 4. When the Respondent indicated that it would perform no further corrective work on their residence, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection, and on March 17, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The Corrective Work Order provides, in pertinent part, as follows: (t)he following action must be taken no later than 15 calendar days from the date of this letter. ….. Obtain a remodeling building permit and all approved inspections from the local building authorities. The contractor is to correct the following items by appropriate means: 1. c. Damage inside vanity from water leaking. The jobsite inspection found water damage at cabinet base/bottom. 3.c. New door now painted. The jobsite inspection found the door is now painted but has paint defects (streaks and holidays). 4. Water damage under kitchen sink due to leaking plumbing. The jobsite inspection found water damage at cabinet base/bottom. 5. New plumbing in enclosed porch, water leaks out when washing machine is in use. Apparently the drain overflows and causes back-up in kitchen sink. 6. Kitchen cabinets out of square. The jobsite inspection found the cabinets/countertops out of square with the walls and floor.

7. Texture of kitchen ceiling does not blend with rest of ceiling text [sic]. The jobsite inspection found a poor crack and texture repair at ceiling. 7. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 8. There was no dispute that the Respondent attempted to call the Complainants on their telephone on some unspecified date during the first few weeks of April 2010. 9. The Respondent asserts that the Complainants’ failure to answer their telephone the two times that the Respondent attempted to call the Complainants constitutes an unreasonable denial of access and that the Complaint against the Respondent should be closed. 10. Credible testimony and evidence presented at hearing established that the Respondent made no written attempt to gain access to the Complainants’ residence during the fifteen (15) day time period set forth in the Corrective Work Order. 11. Credible testimony and evidence established that the Respondent made no attempt to personally contact the Complainants during the fifteen (15) day time period set forth in the Corrective Work Order. 12. The Complainants’ failure to answer the Respondent’s two telephone calls during the first part of April 2010 is not found to constitute an unreasonable denial of access. 13. The assigned Agency Inspector conducted a prehearing inspection of the Complainants’ residence. 14. The Inspector testified that the only item on the Corrective Work Order that had been corrected was Item No. 5, which had been corrected by the Complainants at their own expense. 15. The Complainants actions, in causing the correction of the water leak in the new plumbing in the enclosed porch (Item No. 5 of the Corrective Work Order) so as to prevent further water damage to their residence, are found to be reasonable and justified under the circumstances. 16. Credible testimony and evidence established that the Complainants paid two hundred dollars ($200.00) to a licensed plumber for the corrective work on Item No. 5 of the Corrective Work Order. 17. The Respondent is found to be fully responsible for the cost of performing the corrective work on Item No. 5 of the Corrective Work Order. 18. The assigned Agency Inspector also testified that during his prehearing inspection, he re-inspected several items of the Complaint that he had originally found to be within applicable workmanship standards but that now fail to comply with applicable workmanship and industry standards and require proper corrective action by the Respondent. 19. Credible testimony and evidence established that when the Respondent caused the cracked sink in the Complainants’ residence to be replaced, the Respondent’s subcontractor inadvertently crossed the water lines to the replacement sink resulting in a danger to health and safety. 20. Credible testimony and evidence established that there is also a damaged drain flange in the replacement sink. 21. Credible testimony and evidence established that the cracking on the exterior of the new stucco of the Complainants’ residence now fails to comply with applicable workmanship and industry standards. 22. Credible testimony and evidence established that the joint or connection between the new stucco and the existing stucco on the exterior of the Complainants’ residence now fails to comply with applicable workmanship and industry standards. 23. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. 24. The Respondent shall give the Complainants at least 72 hours written notice of a selected date and time that the Respondent requires access to the Complainants’ residence in order to perform all directed corrective action on the Complainants’ residence. 25. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction work on their 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, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 26. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the 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. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of 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).

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 B- 3.234328-R be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has performed, or has caused a properly licensed contractor to perform, the following corrective actions: 1. That the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. 2. That the Respondent has properly corrected the cracking to the Complainants’ exterior stucco. 3. That the Respondent has properly corrected the cracking in the joint between the new exterior stucco and existing exterior stucco on the Complainants’ residence. 4. That the Respondent has caused a properly licensed contractor to correct the reversed water lines in the replacement sink. 5. That the Respondent has caused a properly licensed contractor to correct the damaged flange in the replacement sink. 6. That the Respondent, as restitution for the Complainants’ cost of causing a licensed plumber to correct of Item No. 5 of the Corrective Work Order, pay the Complainants the sum of two hundred dollars ($200.00). It is further recommended that if the Respondent properly accomplishes 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 this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that the 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 the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the 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 27, 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