ALJDEC decisions subject to certification as final

2011A-1986-ROC · Registrar of Contractors · 2011-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Greg Mitchell. The Respondent appeared through its attorney, Philip Grant. 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 C-36 (No. 046656) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed swimming pool plastering work on a swimming pool being remodeled by the Complainants as owner/builders. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to the Complainants’ satisfaction despite the Complainant’s demand that it do so. 4. When the Respondent failed to comply with the Complainants’ demand, 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 onsite inspection and on April 20, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ swimming pool. 6. The Corrective Work Order provides, in pertinent part, as follows: 1. “Fittings installed in sidewall improperly installed and incorrectly plastered up to” The Pool contractor, in this case the homeowner, is responsible for the overall quality of construction of all the scopes of work and the subcontractor has the responsibility of assuring his scope is completed within industry standards. The plaster contractor should correct his scope of work by appropriate means after the plumbing issues are corrected by the general contractor. 2. “Unwilling to fix voids in plaster even after repeated requests” Corrected prior to inspection. No action required. 3. “Solar return fittings are discolored” Contractor to correct by appropriate means. 4. “Color match issues where repair/patches were attempted” Patches observed appear to be acceptable with the exception of one at the top main step that appeared to be several shades darker plaster material. Contractor to correct this location by appropriate means. 5. “Multiple self cleaning heads filled with plaster” Corrected prior to inspection. No action required. “Poor exposure of aggregate at both skimmer locations” Aggregate concentrations observed at the jobsite appear to be within industry standards. No action required.

7. Credible testimony and evidence establish that the Respondent’s workmanship on the Complainants’ swimming pool plastering failed to fully comply with applicable workmanship and industry standards. 8. Credible testimony and evidence established that the Respondent contacted the Complainants and attempted to gain access to the Complainants’ residence in order to comply with the terms of the Corrective Work Order. 9. Credible testimony and evidence established that the Complainants denied access to the Respondent based upon the Complainants’ attempt to specify the method of corrective work performed by the Respondent. 10. Credible testimony and evidence established that the Complainants, the owner/builders of the swimming pool at issue, have failed to fully correct the plumbing issues which are a prerequisite to Respondent’s ability to fully comply with the terms of the Corrective Work Order issued in this matter. 11. Credible testimony and evidence established that the Complainants’ denial of access to the Respondent based upon the Complainants’ attempt to specify the method of corrective action is unreasonable. 12. The Complainants’ unreasonable denial of access to found to preclude a finding that the Respondent failed to fully comply with the terms of the Corrective Work Order issued in this matter. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform without legal excuse for the abandonment or refusal to perform. 14. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 15. 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 its construction work. 16. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of performing corrective action, nor does the Registrar of Contractors give this power to the homeowner. Instead, the decision as to the method of performing directed corrected action is left up to the licensed contractor, which makes such decisions at its peril. 17. Although the Complainants’ concerns, frustrations, and aggravation they have experienced as an owner/builder with the remodeling work performed on their swimming pool 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 as set forth in the Corrective Work Order issued in this matter. 18. Notice is taken of the Respondent’s prior 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. The credible evidence of record supported findings which establish 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). 5. The credible evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform), and A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes). 6. In view of the unreasonable denial of access, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective work) is supportable. 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 fully complied with the terms of the Corrective Work Order issued in this matter or that the Respondent has been denied reasonable access to the Complainants’ residence to perform the corrective action set forth in the Corrective Work Order. It is further recommended that if the Respondent fully accomplishes the above described corrective action or is denied reasonable access to the Complainants’ residence to perform the directed corrective action, 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, October 3, 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