ALJDEC decisions subject to certification as final

2011A-5574-ROC · Registrar of Contractors · 2012-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2012, at 8:00 a.m. and June 14, 2012, at 8:00 a.m. APPEARANCES: Complainants appeared through Juana Zafra. Can Do Construction LLC (hereinafter “Can Do”) appeared through its attorney, Charles Michael Johns Esq., Charles Michael Johns Attorney at Law. A Spanish/English speaking interpreter was provided for both days of hearing. 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. Can Do is the holder of License No. B-3.235795-R issued by the Registrar of Contractors. 2. This is a residential matter where Can Do performed remodeling work on Complainants’ residence.[2] 3. Complainants were extremely dissatisfied with Can Do’s workmanship and with its failure to correct its work to their satisfaction despite their repeated demands that it do so. 4. When Can Do failed to comply with Complainants’ repeated demands, Complainants filed a formal Complaint against Can Do with the Registrar of Contractors.[3] 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an on- site inspection. On October 13, 2011, Inspector Nieves issued a written Corrective Work Order. 6. The Corrective Work Order repeated Complainants’ complaint items and directed Respondent to perform certain repairs as follows: 1b. [The Flagstone] ended up cracking along with grout is cracking plus falling out: Grout is cracking and falling off, needs to be properly corrected. 2-Drain cover is sealed on by contractor with grout: Cover can not be removed, needs to be properly corrected. 3- Patio started leaked after roof was completed (Apr 2010), now wood is rotting, causing rust to appear on top of paint along with flooding patio. Contractor said it was my gutter that was leaking so he had it replaced by a professional Co. yet it still teaks [sic]: There is evidence of leaks, needs to be properly corrected. 4-Bathroom exterior door leaks inside when it rains: Door does not close correctly, needs to be properly corrected. 6-Front security door doesn’t close properly, sticks out 3/4 inch midway down to bottom when top hits, also has paint scraped off: Door does not close properly, needs to be properly corrected. 7-Threshold was replaced according to original complaint but he left huge [gaps] (1+) in wood on ea. side allows dirt, bugs etc in: There are gaps at the bottom of the door jamb, needs to be properly corrected. 8-Trim around garage door was removed for painting and replaced and now falling off + huge gaps: Trim is not secured properly, needs to be properly corrected. 9-Paint is flaking off the trim on house and areas on house that were repainted spots are showing through again: Paint is flaking off several areas of house, needs to be properly corrected. 10-Transition pieces in front entryway were glued with liquid nails and fell off 2 weeks later: Transition is not secured and cut to short at ends, needs to be properly corrected. 15- The master bathroom tile is uneven and the grout lines vary from 1/8 inch to 1/2 inch in spacing plus not straight: Grout lines are not even, needs to be properly corrected. 16- Appears the cultured marble is separating from wall in entry way of shower stall: Caulking is separating, needs to be properly corrected. 17- The pocket door installed is rubbing on door frame when closing and at one end it has over 1/2 inch gap and the other is rubbing on the door frame taking the paint off the door: Door [does] rub and is not square, needs to be properly corrected. 18- GFI in master bathroom trips breaker and the cover is white and the GFI is off white matching the rest of the room. Need the cover changed to match: GFI does trip and cover is wrong color, needs to be properly corrected. 19. Base boards falling off: Baseboards in living room loose, needs to be properly corrected. 20. Gaps in flooring: There are several gaps at end joints, needs to be properly corrected. 22. Plate at shower nozzle loose and not sealed: Escutcheon plate loose and not sealed, needs to be properly corrected. No action is required on the following: 1a-Flagstone has huge hollow spots: Several areas sound hollow, I could not determine if this is caused by the contractors action. 5-Bathroom tile was replaced (hollow underneath) contractor used wrong color grout ‘LT tan’ original color “grayish brown”: Color is different, I could not determine if this was caused by the actions of the contractor. 11-The consequences of the unprofessional contractor work I have a big problem in front of my house. Prior to them digging the trench my yard was river rock with black plastic looking clean and orderly but now they left it with 4 inches of dirt mixed with my stone on top of the plastic. If the contractor [doesn’t] fix this problem I will need to spend a lot of money to fix my front yard and side that they destroyed: The complainant had some other contractor try to correct the issue. 12- The contractor destroyed my hot tub cover and painted my back wall while painting my house and cut 10 feet off my garden hose while doing the flagstone. He verbally agreed to replace the hot tub cover but has refused to fix these problems which is [sic] costing me money to keep it running: I could not determine if this was caused by the actions of the contractor. 21. Hollow spots in flooring: There are several hollow sounding spots in flooring, I could not determine if this was caused by the actions of the contractor. 23. Owed $2,000.00 for money I paid other contractors: I lack jurisdiction.[4]

7. Inspector Nieves testified that he conducted a pre-hearing inspection on April 12, 2012, and based on his examination and information provided by Complainants and Can Do, none of the items set forth on the October 13, 2011 Corrective Work Order had been corrected.[5] 8. On January 17, 2012, Complainants filed an Addendum to their Complaint that provides, in pertinent part, as follows: 1. Master bath exterior door frame outside is separating from wall. 2. Pocket door no longer works, door fell down in master bath needs to be reattached. 3. Revised contract dated 7 December 2009 signed by both “contractor and homeowner” states to change vanity to 36” cabinet with single bowl countertop cultured marble to match shower which wasn’t done, but instead he installed pedestal sink then charged VA for cabinet that is installed now. 4. The shower water pipe outlet covers not attached or sealed on both pipes in master bath. 5. Knockdown texture in master bath next to sink has 2 lines 10 to inches long in it. (Contractor attempted to fix previously) 6. Knockdown texture in master bath does not match the rest of the bath room. 7. Baseboards in master bath have different style joints, some are degree joints and some are butt joints. 8. Contractor did the electrical in master bath without proper license (B-3 license can’t do electrical work), since then house has had electrical problems. 9. Contractor did the plumbing in master bath without proper license (B-3 license can’t do plumbing work). 10. Pocket door in master bath has divots in paint and needs to be fixed. (Part of original complaint that was never fixed). 11. Front patio roofing is just torch down (B-3 license can’t do torch down roofing) but according to blue print it has torch down as bottom layer and top layer composite shingles (asphalt) install per 2003 I.R.C. CM.9 or to match existing house. Request full size blue print be provided. 12. Front patio header board is painted but according to blue print it should be stucco to match house. 13. Front patio is leaking in 5-10 different places (part of original complaint that was never fixed). 14. House numbers on front of house have overspray on all of them, needs repainted. 15. Front security door handle is about to fall off or break possibly due to the amount of pressure required to open and close door by slamming it. (Part of original complaint that was never fixed). 16. Front security door don’t [sic] close hits framework and has screw heads ground off making it impossible to remove. Needs repainted where paint was rubbed away. (Part of original complaint that was never fixed). 17. Concrete cracking under front patio by column and concrete is not level and not proper grade so that water runs off away from house. 18. Paint peeling off gate needs to be sanded and repainted. Also is creating rust stains on concrete below gate. 19. Flagstone is not level, has multiple areas that are ½”or more of a step from stone to stone and had 2” to set ¾” thick stones on a gradual decline to drain. 20. Flagstone grout gaps vary from 1” up to 3” 21. Contractor splashed or wiped grout or concrete on back wall and side wall next to flagstone area. 22. Concrete cracked in driveway (part of original complaint that was never fixed and caused by contractor’s trailer). 23. Upon review of the contractor’s license I found that the contractor worked on my house during the entire period when his license was suspended for lack of bond by the ROC from 26 June 2010 thru [sic]1 September 2010. 24. Contractor glued baseboard to wall in hallway after multiple attempts to attach baseboard to wall with [sic} nails failed. Needs to be repaired. (Part of original complaint that was never fixed). 25. Contractor needs to install 200 Amp box/service to house based on load calculation box is overloaded requiring minimum 200 Amp box/service. Existing 100 Amp box/service. (Part of original complaint that was never fixed). 26. Contractor didn’t follow change order by covering drain to the street with yard gravel. Yard needs to be covered with rock like it was prior to contractors conducting work at residence. (Part of original complaint that was never fixed). 27. The shingles have gaps from ½ to ¼ inches on the south side of house. (Part of original complaint that was never fixed). 28. Contractor changed the numbers on the change order for the AC from 14.5 Seer to 14.0 Seer after we signed this document.

9. The Complaint was amended on February 2, 2012, to include the additional items set forth in Complainants’ January 17, 2012 Addendum. 10. Inspector Nieves stated that he inspected the twenty-eight (28) items set forth in Complainants’ January 17, 2012 Addendum to the Complaint. Inspector Nieves testified that he found that item numbers 1, 2, 4, 10, 16, 19, 20, 24, and 27 were in the original Complaint and previously addressed in the Corrective Work Order. Inspector Nieves stated that he was not able to make a determination regarding item numbers 3, 8, 9, 11, 12, 18, 22, 23, 25, 26, and 28 of the January 17, 2012 Addendum. Inspector Nieves stated that item numbers 5, 6, 7, 13, 14, 15, 17, and 21 failed to comply with applicable workmanship and industry standards and required appropriate corrective action by Can Do.[6] 11. Inspector Nieves testified that during the on-site inspection, Can Do’s qualifying party, Wayne Johnston (“Mr. Johnston”), did not dispute that the items set forth in the Corrective Work Order failed to comply with applicable workmanship standards. Inspector Nieves testified that Mr. Johnston agreed to correct all of the items set forth on the Corrective Work Order.[7] 12. Inspector Nieves’ testimony regarding Can Do’s failure to comply with applicable workmanship standards for the items set forth in the Corrective Work Order and items 5, 6, 7, 13, 14, 15, 17, and 21 of the January 17, 2012 Addendum to the Complaint is found to be credible. 13. Martin Arvizu (“Mr. Arvizu”) testified that he performed construction work on Complainants’ residence as an employee of Can Do. Mr. Arvizu stated the he performed electrical, plumbing, and shingle work on Complainants’ residence. Mr. Arvizu stated that the flagstone in Complainants’ yard was loose and had hollow spots.[8] 14. Complainant Juana Zafra (“Ms. Zafra”) testified that the flagstone in Complainants’ back patio is unlevel, broken, cracked, and hollow sounding.[9] Ms. Zafra’s testimony is found to be credible and is supported by the video presented by Complainants.[10] 15. Mr. Johnston testified that he started working on Complainants’ residence in December 2010. Mr. Johnston stated that Can Do originally agreed to have a 16 Seer air conditioning unit installed in Complainants’ residence that would work with Complainants’ existing furnace. He was informed by the HVAC subcontractor that the 16 Seer air conditioning unit would not work with Complainants’ existing furnace. After he explained the problem to Mr. Peters, Mr. Peters agreed to the installation of a 14 Seer combined HVAC system instead of the specified 16 Seer air conditioning unit.[11] 16. Can Do submitted a signed change order wherein Complainants agreed to the installation of a Rudd four-ton 14.0 Seer Condenser and furnace in place of the 16 Seer Trane Condenser.[12] 17. Mr. Johnston testified that after the Corrective Work Order was issued, he sent Complainants a letter on October 25, 2011, asking for a date and time to perform the corrective action required by the Corrective Work Order.[13] 18. Complainants filed a written response wherein they agreed to provide Can Do access to their residence. The written response provided, in relevant part, as follows: I will schedule time around my medical appointments, scheduled vacations and if I schedule you for 2 hours you have just 2 hours and if you were unable to complete the repair we will need to reschedule time to complete that repair at another date. You also need to include 20 minutes for the pre and post Inspection for each item. Some of the bigger jobs may need to be scheduled over multiple dates and times to [sic] completed. I only want 1 item to be repaired at a time so we don’t have everything torn up for weeks before you can return to finish or to run into another situation like [sic] happened on my back patio where the roof was left open for a month during the monsoon enduring 4 heavy rain storms resulting in the decking to rot [sic].[14]

19. On December 15, 2011, Can Do filed a second written request for access to Complainants’ residence wherein Can Do rejected Complainants’ conditions and indicated that Can Do would comply with the terms of the Corrective Work Order. The December 15, 2011 letter provided in relevant part as follows: We work a full day and to justify any realistic work task we will need to be allowed to do our job. If these considerations are unacceptable, any further discussion is futile. We recommend that you pay our bill and hire another company to pacify your demands.[15]

20. On January 9, 2012, Can Do submitted a third written request for access to Complainants’ residence in order to comply with the terms of the Corrective Work Order. The January 9, 2012 letter provided in relevant part as follows: Regretfully I have received no response from my previous letter. Let’s try again. I can work 830-1130 any day of the week you choose. That should be sufficient time to get some work done and get a material list made up for another day of work. Please give me one week’s notice for planning around my other business matters.[16]

20. Can Do’s requested access was not provided and no corrective work was performed on Complainants’ residence. 21. The nature and extent of the designated corrective action set forth in the Corrective Work Order did not warrant inspections by Complainants. The limitations imposed on Can Do by Complainants for access to their residence could not have been calculated to enable the expeditious accomplishment of the designated corrective action set forth in the Corrective Work Order and are found to be unreasonable. 22. The unreasonable limitations imposed by Complainants for access to their residence are found to preclude a finding that Can Do failed to take appropriate corrective action to comply with the terms of the Corrective Work Order. 23. Both parties demonstrated an ongoing inability to effectively communicate or to schedule Can Do’s onsite work. The parties repeatedly resorted to Inspector Nieves to act as an intermediary. This is not an appropriate agency function. 24. There was no credible evidence that Can Do abandoned or refused to perform the construction project at issue. 25. 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. 26. Although Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction work on their residence are understandable, construction work is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of poor workmanship prior to completion of a specified project to bring the final work product up to appropriate industry standards. In this regard, Can Do must be given a reasonable opportunity to complete necessary remedial work on Complainants’ residence. 27. Administrative notice is taken of Can Do’s prior license record as reflected on the Registrar of Contractors’ public website on July 9, 2012. Such prior license record reflects that License No. B-3.235795-R of Can Do is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence establish that Can Do failed to comply with applicable workmanship and industry standards in its construction work on the items that the Corrective Work Order required it to repair and on item numbers 5, 6, 7, 13, 14, 15, 17, and 21 of the January 17, 2012 Addendum to the Complaint. Credible testimony and evidence also established that Can Do failed to comply with applicable workmanship and industry standards in its work on the Flagstone patio, Item No. 1a on Corrective Work Order. This tribunal concludes that Can Do violated the charged provisions of A.R.S. § 32-1154(A) (2) (Departure from or disregard of plans or specifications or any building codes) and A.R.S. § 32-1154(A) (3), namely, A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). 4. The credible evidence of record failed to establish that Can Do abandoned the construction project at issue or failed to take appropriate corrective action to comply with the Registrar’s written directive. This tribunal concludes that Complainants failed to meet their burden of proof to establish violations of the charged provisions of A.R.S. § 32-1154(A) (1) (Abandonment) and A.R.S. § 32-1154(A) (23) (Failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that License No. B-3.235795-R of Can Do Construction LLC shall be suspended until the Registrar of Contractors receives and accepts written proof that Respondent has fully complied with the terms of the written Corrective Work Order and that Respondent has fully corrected item numbers 5, 6, 7, 13, 14, 15, 17, and of the January 17, 2012 Addendum to Complaint and the Flagstone in Complainants’ patio yard. It is further recommended that if Can Do fully accomplishes 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 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, July 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- 21. [1] Jeffrey M. Peter’s wife, Juana Zafra, was added as a named Complainant in this matter.

[2] See Exhibit C-2 (Contract). [3] Exhibit R-1 (Complaint). [4] Exhibit No. C-4 (10/13/2011 Corrective Work Order). [5] 4/12/12 Hearing Record (hereinafter “4/12/12 H.R.”) at 26:44-27:01. [6] 4/12/12 H.R. at 27:16-34:29. [7] 4/12/12 H.R. at 37:56-38:51. [8] 4/12/12 H.R. at 59:39-1:16:07. [9] 4/12/12 H.R. at 1:16:56-1:23:42. [10] Exhibit C-1 (DVD). [11] 4/12/12 H.R. at 3:51:43-3:55:05. [12] Exhibit No. R-8. [13] Exhibit No. R-23 (October 25, 2011 letter). [14] Exhibit R-24 (Undated email). [15] Exhibit R-25 (December 15, 2011 Letter). [16] Exhibit R-26 (January 9, 2012 Letter).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826