ALJDEC decisions subject to certification as final

2011A-7167-ROC · Registrar of Contractors · 2012-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2012, at 8:00 a.m. APPEARANCES: Complainant Joanne Palaoro appeared on her own behalf; Respondent L J L Development Co. Inc. appeared through Jack Junior Lamoreux, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. C-11.247649-R and B.065190-R to L J L Development Co. Inc. (“Respondent”). 2. The Registrar received a complaint from Joanne Palaoro (“Complainant”) against Respondent regarding its enclosure of the patio on Complainant’s house at 20210 North 266th Avenue, Buckeye, Arizona. 3. The Registrar assigned the complaint to its inspector, Randy Cason, for investigation. After Inspector Cason inspected the jobsite, he issued a Corrective Work Order (“CWO”) to Respondent that required it to perform certain corrective action within twenty-five days. The CWO provided in relevant part as follows: Complaint #1 – Electric overloading at additional outlets The Respondent had added new receptacles to the existing GFCI breaker that feeds the patio enclosure; when the Complainant’s [used] these new receptacles in the patio[,] the GFCI receptacle behind the freezer in the garage trips. It appears that the original breaker cannot accommodate the new extra amps from the new patio receptacles installed by the Respondent. The Respondent is to correct by appropriate means per the Town of Buckeye Building Dept codes requirements and correction notice dated 1/18/2012.

Complaint #2 – Stucco insufficient thickness The Respondent is to correct by appropriate means per the Town of Buckeye Building Dept codes requirements and correction notice dated 1/18/2012. . . . .

Complaint #4 – Fan improperly installed Complainant stated that the Respondent’s employees had installed the ceiling fan but forgot to install the remote control unit system. They took down the fan[,] install[ed] the control unit and reinstalled the ceiling fan. The Complainant turned on the ceiling fan; it appears that the fan motor speeds are not working properly. The Respondent is to correct by appropriate means per the manufacturers installation specifications. . . . .

Complaint #6 – Damaged floor Complainant showed this Inspector a few areas on the finish[ed] floor . . . they believe the Respondent had damaged during construction of the patio enclosure. The Complainant stated that this finished floor covering was install[ed] approx[.] 3 years prior to the Respondent doing any work. Was not able to determine if the Respondent was responsible or not.

. . . .

Complaint #8 – Exterior light fixtures loose Confirmed; there are 3 coach lights that were installed by the Respondent[;] they are not installed properly (loose) or per building codes. No weather sealing around light fixture to stucco. The Respondent is to correct by appropriate means per the Town of Buckeye Building Dept codes requirements and correction notice dated 1/18/2012.

Complaint #9 – Stucco missing under windows Confirmed; stucco and lathing are not install[ed] correctly[,] per building codes and industry standards. The Respondent is to correct by appropriate means per the Town of Buckeye Building Dept codes requirements and correction notice dated 1/18/2012.

Complaint #10 – Paint on window frames; etc[.] Confirmed; There is green paint from the stucco paint finish that is on the windows and sliding glass door frames. The Respondent is to correct by appropriate means[.]

Complaint #11 – T V cable installation is incomplete Confirmed; Cables (2 – 1 in the attic and 1 at the cable panel box in the laundry room) are not connected. (Incomplete) The Respondent is to correct by appropriate means per the Town of Buckeye Building Dept codes requirements and correction notice dated 1/18/2012. . . . .

Complaint #14 – Patio doors appear to be improperly installed; not squared Sliding glass door on the left side looking out from the patio enclosure; Sliding glass door frame is out of square ¾ of an inch. Sliding glass door on the right side is 3/8 inch out of plumb (active door panel) The Respondent is to correct by appropriate means[.]

4. After Respondent did not resolve Complainant’s complaint to her satisfaction, the Registrar issued a Citation and Complaint charging Respondent with violating A.R.S. § 32-1154(A)(2), A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 5. Respondent filed a timely written answer to the Citation and Complaint denying any statutory violations. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A hearing was held on July 13, 2012. Inspector Cason testified. Complainant submitted fourteen exhibits, testified on her own behalf, and presented the testimony of Charles Miller, who lives with Complainant at the house where Respondent enclosed the patio. Respondent submitted two exhibits and presented the testimony of four witnesses: (1) Jack Junior Lamoreux, the qualifying party and officer on both of Respondent’s licenses; (2) Daniel Lamoreux, Jack Lamoreux’s son and Respondent’s employee; (3) Michael Phillips, a building inspector for the Town of Buckeye Building Safety Department (“the Town of Buckeye”); and (4) Phillip Marcotte, the Chief Building Official for the Town of Buckeye. Mr. Phillips and Mr. Marcotte testified pursuant to Respondent’s subpoenas. 8. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 26, 2012. Such prior License record reflects that Respondent’s License Nos. C- 11.247649-R and B.065190-R are both current. Hearing Evidence 9. Inspector Cason testified that Complainant’s complaint originally was opened against Respondent’s Class C-11 electrical license, but that the complaint should have been opened against Respondent’s Class B general contracting license. 10. Inspector Cason performed a prehearing jobsite inspection on July 12, 2012. His testimony about his observations of the unresolved items on the CWO is set forth separately below. 11. With the exception of Respondent’s alleged damage to the epoxy coating on the floor of the patio enclosure, Complainant did not dispute the items on the CWO that Inspector Cason either did not require Respondent to correct or testified Respondent had adequately corrected (CWO Items 3, 5, 7, 12, and 13). The Epoxy Coating on the Floor (CWO Item 6) 12. Complainant testified that Respondent’s workmen damaged the epoxy coating on the floor in the patio enclosure by failing to cover the floor and by laying their tools on the floor (CWO Item 6). Complainant testified that before Respondent enclosed the patio, the floor had been in good condition. 13. Daniel Lamoreux testified that Respondent covered the floor and that none of Respondent’s tools could have caused the marks that he saw on Complainant’s floor. Daniel Lamoreux testified that Complainant showed him three long scratches in the area of the floor near the wall that looked old and appeared to have been caused by dragging something over the floor. 14. Before the hearing, Complainant hired another contractor to apply another epoxy coating to the floor. Complainant requested that the Registrar require Respondent to pay for the cost of recoating the epoxy floor. Items that Complainant Paid Others to Resolve (CWO Items 1, 4, 10, and 11) 15. Inspector Cason testified that Complainant hired other contractors to run a dedicated electrical circuit to the patio enclosure (CWO Item 1), to properly install the ceiling fan (CWO Item 4), to remove the excess paint from the door and window frames (CWO Item 10), and to complete the cable installation (CWO Item 11). 16. Complainant testified that Respondent did not repair these items within the twenty-five days that the CWO allowed. Complainant submitted invoices for the other contractors’ work and requested that the Registrar require Respondent to pay the amounts of the invoices. The Patio Doors that Respondent Installed Out of Square (CWO Item 14) 17. Inspector Cason testified that both exterior doors on the patio enclosure were out of square. Inspector Cason testified that Complainant informed him that Respondent had presented her with two options to repair the doors: (1) The opening for the doors could be demolished and rebuilt, in which case the opening might not match the window above the doors; or (2) The doors could be adjusted so that they functioned as intended. Inspector Cason testified that because Complainant informed him that she had chosen the second option, he considered this complaint item to be resolved through the parties’ agreement. 18. Complainant acknowledged that she had agreed that Respondent could adjust the doors rather than demolishing and rebuilding the opening for the doors. Complainant argued that Respondent should have framed the opening for the doors correctly the first time and that it should be required to tear down, reframe, and rebuild the entire patio enclosure. 19. Inspector Cason testified that the outer screen doors were still not operating as intended and needed to be adjusted. The Exterior Light Fixtures (CWO Item 8) 20. Inspector Cason testified that Respondent tightened the exterior light fixtures (CWO Item 8). Inspector Cason testified that Respondent only sealed the top of the fixtures against water intrusion, but the Registrar’s standards require all sides of an exterior fixture to be sealed. 21. The January 18, 2012 Correction Notice referenced in the CWO was not submitted at the hearing. Complainant did not ask Inspector Phillips or Chief Marcotte about Respondent’s corrective work on the light fixtures. 22. Jack Lamoreux disputed that Respondent had only sealed the top of the fixtures. The Stucco (CWO Items 2 and 9) 23. Inspector Cason testified that the window frames in the patio enclosure protrude 1” to 1½” beyond the stucco and that the window frames in the rest of the house were flush with the stucco. Inspector Cason testified that Respondent applied a Western One Kote Stucco System to the patio enclosure and that such system consists of 1” of Styrofoam and ⅜” of stucco. Inspector Cason testified that the window frames protruded beyond the stucco because Respondent did not install Styrofoam under the stucco. 24. Inspector Cason testified that Respondent corrected the missing stucco underneath the windows (CWO Item 9), but that it had not corrected the thickness of the stucco over the entire patio enclosure, including under the windows (CWO Item 2). 25. The parties’ contract required Respondent to match the existing stucco on Complainant’s house.[1] One of the drawings that Respondent submitted to the Town of Buckeye to obtain the permit had a handwritten notation, “3 coat stucco.”[2] No evidence was submitted to establish whether Complainant’s existing house had a Western One Kote Stucco System or a 3-coat stucco system.[3] 26. Jack Lamoreux testified that the contract only required Respondent to apply stucco over OSB board, not Styrofoam, and that installation of Styrofoam would have increased the contract price. 27. Complainant made numerous calls to the Town of Buckeye for inspections whenever she felt that Respondent was not properly constructing the patio enclosure. At one point, she sent photographs of the fasteners to the Town of Buckeye that Respondent used to attach the lath. 28. Jack Lamoreux testified that Complainant’s numerous calls to the Town of Buckeye delayed Respondent’s enclosure of the patio and efforts to comply with the CWO. He did not testify that Complainant absolutely denied access to allow Respondent to complete the project or to perform repairs to comply with the CWO. 29. Because Inspector Phillips did not believe that the fasteners shown in Complainant’s photographs complied with code, he revoked the final inspection and required Respondent to remove and replace the paper, expanded metal, and fasteners on the exterior wall of the patio enclosure. 30. Although Jack Lamoreux believed that the fasteners complied with code, Respondent removed and replaced the paper, expanded metal, and fasteners on the exterior wall of the patio enclosure. 31. Inspector Phillips testified that the Town of Buckeye requires contractors who apply stucco systems to present certification from the manufacturer of the stucco system that the contractor is qualified to apply the system. Inspector Phillips testified that contractors usually present such certification at building inspections. 32. Although Inspector Phillips scheduled a final inspection for July 11, 2012, two days before the hearing, Complainant was not present to provide access to Inspector Phillips.[4] As a consequence, at the time of the hearing, there was no evidence whether Respondent’s repairs to the stucco would pass the Town of Buckeye’s final inspection. There also was no evidence whether Respondent’s evidence of certification to apply the stucco system would have satisfied the Town of Buckeye. 33. Inspector Phillips testified that in light of the hearing evidence that Respondent applied the Western One Kote Stucco System when the plans submitted for the permit referenced a 3-coat stucco system, he would need to consult his supervisor to determine whether the substitution was acceptable to the Town of Buckeye. Inspector Phillips testified that the one-coat system was more flexible and provided a higher R-value, but that some people thought that the 3- coat system was more structurally sound. 34. Inspector Phillips testified that that the building code and the Town of Buckeye’s inspectors were concerned with health, safety, and the structural soundness of the buildings they inspected. Inspector Phillips testified that the protruding door and window frames in Complainant’s patio enclosure presented a cosmetic issue, not a health, safety, or code issue. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Although the Registrar may order a contractor to pay restitution to avoid discipline against its license,[8] the Registrar may not award money damages.[9] Because construction is not a perfect art, generally contractors must be afforded an opportunity to repair their work before the Registrar revokes, suspends, or otherwise disciplines their licenses. An award of restitution is not available in these matters because Complainant failed to establish any reason why she could not have waited until the hearing to allow the Registrar to require Respondent to correct the dedicated electrical circuit, the ceiling fan, the excess paint on the door and window frames, and the cable installation (CWO Items 1, 4, 10, and 11).

Complainant did not establish that Respondent damaged the epoxy coating on the floor of the patio enclosure (CWO Item 6). Complainant acknowledged that she accepted Respondent’s adjustment of the patio doors (CWO Item 14). Complainant’s acceptance of Respondent’s corrective work precludes the Registrar from requiring further correction of its installation of the patio doors. However, Complainant established that Respondent’s failure to adjust the outer screen doors to comply with the agreement was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[10] Complainant established that Respondent failed to fully seal the exterior light fixtures in a professional and workmanlike manner and failed to fully comply with the CWO by applying weather sealant between the fixtures and stucco (CWO Item 8). Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23).[11] Inspector Phillips testified that the thickness of the stucco was an aesthetic issue, not a code violation. Respondent repaired the stucco to comply with the Town of Buckeye’s correction notice, but the Town of Buckeye had not inspected the repairs. Therefore, Complainant did not establish that Respondent failed to comply with code in its application of the stucco (CWO Item 2), in violation of A.R.S. § 32-1154(A)(2).[12] Respondent is responsible for having its work pass the final inspection by the Town of Buckeye’s building inspectors. Because Complainant did not establish that Respondent violated the Town of Buckeye’s building code, however, she should be admonished to avoid involving the Town of Buckeye in any further corrective action that the Registrar requires Respondent to perform as a condition of avoiding suspension of its license. The references to stucco in the contract and in the documents that Respondent submitted to obtain the permit were not consistent. Regardless of whether the contract or the permit required Respondent to apply a Western One Kote Stucco System or a 3-coat system, Complainant did not establish that construction of one system rather than the other constituted a material breach of the contract. As Inspector Cason noted, however, the contract unambiguously required Respondent to match the stucco on the existing house. Complainant established that Respondent did not match the stucco on the existing house in that the window and door frames on the patio enclosure protruded further from the stucco than the window and door frames on the existing house. Therefore, Complainant established that Respondent departed from plans and specifications in its application of stucco on the patio enclosure, in violation of A.R.S. § 32-1154(A)(2), and that it failed to correct the stucco to comply with the CWO, in violation of A.R.S. § 32-1154(A)(23). All of the work that still requires correction is within the scope of Respondent’s Class B general contracting license rather than Respondent’s Class C-11 electrical license. As Inspector Cason acknowledged at the hearing, Respondent undertook the patio enclosure under the authority of its Class B general contracting license. Therefore, the Registrar should discipline only Respondent’s Class B general contracting license as a result of the contracting law violations that Complainant established in these consolidated matters.[13] RECOMMENDED ORDERS Case No. 2012A-1746-ROC Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant Joanne Palaoro’s complaint in Case No. 2012-1746 be dismissed against Respondent L J L Development Co. Inc.’s License No. C-11.247649-R. In the event of certification of the 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 that certification. Case No. 2012A-7167-ROC Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Respondent L J L Development Co. Inc.’s License No. B.065190-R be suspended until Respondent has corrected the thickness of the stucco, adjusted the outer screen doors, and fully sealed the exterior light fixtures on the patio enclosure. If is further recommended that if on or before the effective date of the Registrar’s Order, Respondent submits written proof that is acceptable to the Registrar that it has corrected the thickness of the stucco, adjusted the outer screen doors, and fully sealed the exterior light fixtures on the patio enclosure in a professional and workmanlike manner, the Registrar not suspend Respondent’s license but, instead, close Complainant Joanne Palaoro’s complaint in Case No. 2012-7167. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’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. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, July 30, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Complainant’s Ex. 2 (Exhibit A). [2] See Complainant’s Ex. 3 at 5. [3] Inspector Cason testified that a 3-coat stucco system requires a scratch coat, a brown coat, and a color coat that collectively would be about 1” thick. [4] Complainant testified that Respondent did not inform her of the scheduled inspection. [5] See A.R.S. §§ 32-1151 to 32-1169. [6] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [9] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [10] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [11] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [12] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [13] If Respondent’s Class B general contracting license is suspended as a result of its failure to comply with the Registrar’s Order, in due course its Class C-11 electrical license will also be suspended under A.R.S. § 32- 1154(A)(21) (A.R.S. § 32-1154(A)(21) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.”).

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