ALJDEC decisions subject to certification as final

2011A-44-ROC · Registrar of Contractors · 2011-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 2011, at 8:00 a.m. The matter was held open until September 26, 2011, to allow the parties sufficient time to file their closing statements APPEARANCES: The Complainant appeared through her attorney, Bennett R. Shelsky. The Respondent appeared through its attorney, Michael S. Samuels. 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 B (No. 093203) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed an extensive remodeling project on 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 correct its work to her satisfaction, despite her demands that the Respondent do so. 4. When the Respondent failed to comply with the Complainant’s demands, the Complainant 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 January 28, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The January 28, 2011, Corrective Work Order provides, in pertinent part, as follows:

1. New addition leaks water/rain. After water testing for approximately 30 minutes in the area the H/O pointed out to leak, and there was [sic] no leaks observed at this time. Therefore there is no action required by the contractor at this time. 2. Few shingles lifted up in a large radius during windy conditions, they are not secured properly. 3. It appears that the [sic] pointed out and lifted up by the contractor were stapled and should be nailed. Therefore the contractor is to correct by the appropriate means. 3a. Drip edge installed improperly over the underlayment. It appears to be as stated above and no [sic] installed as per Industry standards. Therefore the contractor is to correct by the appropriate means. 3b. Roof vents not installed along the eves [sic]. It appears that there are numerous vents in the eves [sic] of the house and therefore there is no action required by the contractor at this time. 4. New A/C installed on the roof leaks oil at the compressor fan. It appears that no leak of oil could be detected at the time of J/S inspection. Therefore there is no action required by the contractor at this time. 5. Air distribution to new room addition/remolded [sic] areas are [sic] missing air supply ducts. The Contractor per a jobsite agreement stated that he would correct by the appropriate means. 6. There is no vent fan in the laundry room. The Contractor per J/S agreement will correct by the appropriate means. 7. New sliding doors and windows have many scratches. It appears that although there several windows and sliding doors that exhibit scratches only one could be confirmed reported with right-a- away [sic] there were other contractors not hired by the Respondent and it appears final given by the County, and not able to establish when the other windows and sliding glass doors scratched, nor can confirm or deny who was responsible or with in the 10 day ROC requirement to notify the contractor. Therefore there is no action required by the contractor at this time. 7a. Gaps in the window or door frames. It appears that there was a gap above the window Westside exterior of the master bedroom, and there that have gap do not appear to fit correctly. The contractor per a J/S agreement will correct by the appropriate means. 7b. Window and door fames bent. It appears that one door threshold for a slider on the exterior is damaged with small dent. However not able to confirm or deny, when or who responsible for the small dent. Therefore there is no action required by the contractor at this time. 8. Interior floors not level where Contractor poured new slab. The following complaint items the Contractor per a J/S agreement will correct by the appropriate [sic] • Walk-in closet existing concrete is higher than new poured concrete. It appears that the existing concrete is approximately 5/8’” [sic] and tapers down to 1/8” and does not meet Industry or RPC [sic] standards for workmanship. • Various areas in the new poured concrete floor are not level. It appears that there various location [sic] that do not meet ROC standards. 9. Carpet not laid [sic] per fact new concrete slab needs to be corrected. This appears that after the concrete is corrected then the carpet can be laid [sic] as per terms and conditions of the contract. 10. Many electrical errors and had to have them corrected for safety, due to fact one electric outlet caught fire. It appears that the H/O had the electrical work [sic] prior to the J/S by other and wants restitution. This inspector doesn’t have the jurisdiction to award restitution. Therefore there is no action required by the contractor at this time. 11. Paint inferior workmanship and paint products use n [sic] the walls. It appears that the H/O had this complaint item corrected prior to this J/S inspection and wants restitution. This Inspector does not have the jurisdiction to award restitution. 7. The assigned Agency Inspector issued a second written Corrective Work Order on February 4, 2011. 8. The February 4, 2011, Corrective Work Order provides, in pertinent part, as follows: NOTE THIS AMMENDED [sic] CORRECTIVE WORK ORDER IS TO SUPERSEED [sic] THE CORRECTIVE WORK ORDER SENT 02/28/2011 AS FALLOWS [sic].

5. The air distribution to new room addition/remolded [sic] areas is missing air supply ducts & vents. It appears that this remold [sic] project passed and given final by the County Building Official. And the Contractor gratuitously agreed per jobsite agreement to install ducts to the Master bedroom laundry room & existing laundry room near garage by the appropriate means.

6. There is no vent fan in the existing laundry room by the garage. It appears that this remold [sic] project passed and given final by the County Building Official, but the Contractor gratuitously [sic] per jobsite agreement to correct by the appropriate means.

7. New sliding doors and windows have many scratches. It appears that although there [sic] several windows and sliding doors that exhibit scratches, only one appears to have been reported with in [sic] the 10 day period. This being the window next to the slider on the west Master bedroom bay area, and the Contractor was ordered to correct. It also appears that the Contractor gratuitously per a jobsite agreement will replace the glass of 1) fixed panel of sliding glass door, 1) panel of the sliding portion of the sliding glass door and 1) upper fixed window in the Master bedroom bay area by the appropriate means.

9. Credible testimony and evidence established that the second Corrective Work Order was intended to be an Addendum to the first Corrective Work Order. 10. Credible testimony and evidence established that the Respondent failed to comply with item number two (2) of the January 28, 2011, Corrective Work Order. 11. Credible testimony and evidence established that the roof shingles have not been properly secured with nailing as required by the local building authority. The Respondent shall properly secure the shingles as set forth in the Corrective Work Order. 12. Credible testimony and evidence established that the remaining items of the January 28, 2011, Corrective Work Order and the February 4, 2011, have been corrected to within applicable workmanship and industry standards. 13. On May 5, 2011, the Complainant filed a seven (7) page Amended Complaint with the Registrar of Contractors. 14. The Registrar of Contractors accepted the Amended Complaint and on July 20, 2011, issued a Notice of Amendment. 15. The Notice of Amendment provides, in pertinent part, as follows: Notice is hereby given to Respondent that on or about May 5, 2011, Counsel for Complainant filed an Amended Complaint a copy of which is attached hereto, the original January 3, 2011 Complaint Form to include additional alleged deficiencies including structural issues, electrical issues, HVAC issues, roofing issues, and windows. The Registrar accepts such Amendments and their contents are incorporated into the January 3, 2011 Complaint Form and the April 20, 2011 Citation and Complaint. Respondent shall be deemed to have denied the allegations of the aforesaid Amendments to the Citation and Complaint, and Respondent need not file an additional Answer to such Amendments. Note: If a violation of A.R.S. § 32-1154(A)(23) was alleged in the Citation and Complaint, the contents of the Amendments will not be subject to such allegation, as such alleged deficiencies are not the subject of a Corrective Work Order. However, should this matter proceed to an administrative hearing, the assigned Registrar Inspector shall inspect the newly alleged deficiencies at a prehearing inspection and be prepared to testify as to his findings and observations at the hearing. 16. Credible testimony and evidence, presented at hearing, established that the items set forth in the May 5, 2011, Amended Complaint fail to comply with applicable workmanship and industry standards and that the enumerated items of the Amended Complaint fail to comply with applicable workmanship and industry standards which require proper corrective action by the Respondent. 17. Credible testimony and evidence established that the majority of the items of the Amended Complaint are “punch list” type of items which the Respondent has not yet had an opportunity to correct. 18. The Respondent shall fully correct the enumerated items set forth in the May 5, 2011 Amended Complaint. 19. Credible testimony and evidence established that the installation of a Glu-Lam beam installed in the Complainant’s family room presents a potential health and safety issue. The Respondent shall properly correct the installation of the Glu-Lam beam in accordance with the recommendation to the structural engineer retained by the Complainant in this matter. 20. Credible testimony and evidence established that the Respondent failed to fully comply with the provisions of A.R.S. § 32-1124 (B) (display of license) in this matter. 21. 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 work. 22. Although Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the construction work in her 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. 23. Notice is taken of the Respondent’s 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 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)(23) (failure to take appropriate corrective action), A.R.S. § 32- 1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license) and 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 receives and accepts written proof that the Respondent has fully complied with the terms of the Corrective Work Orders issued in this matter, that the Respondent has fully corrected the items set forth the in the May 5, 2011 Amended Complaint, and that the Respondent has fully complied with the terms of A.R.S. § 32-1124 (B) (display of license). 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 shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $200.00 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 6, 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