ALJDEC decisions subject to certification as final

2010A-661574-ROC · Registrar of Contractors · 2010-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Robert Raynor. 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.171988-R issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. 3. Undisputed credible testimony and evidence established that the Complainant’s new residence displayed severe interior and exterior cracking, including exterior stucco cracking, tile grout cracking, concrete cracking, interior plaster cracking and drywall cracking, and that the Complainant repeatedly complained of the cracking problems to the Respondent. 4. Undisputed credible testimony and evidence established that the Respondent repeatedly performed cosmetic repairs on the interior and exterior cracking and that the cracking repeatedly recurred. 5. Credible testimony and evidence established that the Complainant pleaded with the Respondent to retain an appropriately licensed professional to examine the Complainant’s residence and determine the cause of the cracking problem and issue a recommendation as to the proper correction of the cracking problem. 6. Undisputed credible testimony and evidence established that the Complainant and the Complainant’s family have had to suffer through repeated repair attempts on their residence and that each repair attempt necessarily caused the Complainant and his family to move and cover their furniture and personal belongings and that the repeated repair attempts have prevented the Complainant and his family from fully utilizing their new residence. 7. After the repeated unsuccessful repair attempts failed to resolve the cracking problem the Complainant and his family were understandably frustrated and disappointed with the Respondent’s lackadaisical corrective efforts. 8. When the Respondent failed to appropriately determine the cause of the severe cracking in the Complainant’s residence despite the Complainant’s repeated requests that the Respondent do so the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. 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. 10. Undisputed credible testimony and evidence established that the Respondent failed to make any effort to determine the cause of the cracking in the Complainant’s residence and that instead the Respondent persisted with its efforts to perform cosmetic repairs on the cracking in the Complainant’s residence despite the undisputed fact that previous cosmetic repair attempts had repeatedly failed to resolve the cracking problems in the Complainant’s residence. 11. On March 3, 2010 the Complainant filed a letter requesting an administrative hearing. The letter provides, in relevant part, as follows: I originally filed a complaint with the Registrar of Contractors on July 20, 2009. You came to my home for an inspection on August 10th. You then sent a “Corrective Work Order” letter on August 11th to me and the Respondent, Outpost Development, indicating that 10 items needed to be addressed. 5 of the 10 items were never addressed. I have given Outpost over six months to address the issues, but I have not heard form Outpost since October. Most importantly, the major issue, causing the problem with most of the items, was never addressed-that issue likely being a shifting of my home’s foundation leading to cracking in almost all interior and exterior walls and ceilings. The cracking continues to worsen and appear(s) in new areas. The various band aids put over some of the items are not fixing the problem nor preventing the issues form returning over time. 12. Undisputed credible testimony and evidence established that the cracking in the Complainant’s residence continues to occur and that the underlying problem is apparently continuing to magnify itself as undisputed testimony established that the cracking in the Complainant’s residence is getting worse and that the Complainant is now experiencing increasing difficulty in opening and closing the exterior and interior doors and windows in his new residence. 13. In addition to the extensive cracking in the Complainant’s residence, and whatever underlying problem that is causing the extensive cracking, undisputed credible testimony and evidence established that the Respondent has failed to clean up the paint splatters on the Complainant’s tile, carpet, counters, sinks, fixtures, windows, furniture and appliances. 14. Undisputed credible testimony and evidence established that the Respondent’s painting subcontractor performed touchup work on various interior crack repairs and splattered paint throughout the Complainant’s residence. 15. Undisputed credible testimony and evidence established that the painting work performed by the Respondent’s selected painting subcontractor was far below applicable workmanship and industry standards. 16. Undisputed credible testimony and evidence established that the Respondent failed to comply with the Corrective Work Order and that there are still unacceptable paint splatters throughout the Complainant’s residence. 17. Undisputed credible testimony and evidence, presented at hearing, established that there was no unreasonable denial of access by the Complainant in this matter. 18. Undisputed credible testimony and evidence established that the Respondent has failed to comply with the terms of the Corrective Work Order issued in this matter. 19. Credible testimony and evidence established that the Registrar of Contractors does not give specific directions on methods of performing directed corrective action nor does the Registrar of Contractors delegate this power to the homeowner instead the method of performing the directed corrective action is left up to the licensed contractor which makes such selection at its peril. 20. 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 homeowner. 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 the Respondent cause another properly licensed contractor to fully comply with the terms of the Corrective Work Order issued in this matter. 21. Although the Complainant’s very obvious frustration and aggravation regarding the problems he has experienced with the construction of his 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, the Respondent must be given a reasonable opportunity to complete necessary remedial work by causing another properly licensed contractor to fully comply with the terms of the Corrective Work Order issued in this matter. 22. Notice is taken of the Respondent’s prior good 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) (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 No. B.171988-R shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor to fully comply with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent utilizing a properly licensed contractor causes the accomplishment the above described corrective action, 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. It is further recommended, in addition to the above-provided penalties, if any, that 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 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with 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, August 17, 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