ALJDEC decisions subject to certification as final

2011A-948-ROC · Registrar of Contractors · 2011-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2011 APPEARANCES: James Arthur and Jessica Harman were present and represented by their attorney, Bob Kozak, Esq. Antelope Springs Construction, Inc. was represented by its authorized representative, Paul Padrnos. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Antelope Springs Construction, Inc. (“Respondent”) is the holder of License No. 161983, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. In 2010, James Arthur and Jessica Harman (“Complainants”) contracted with Respondent for remodeling work at Complainants’ residence located at 4780 N. Tonto Way, Prescott Valley, Arizona. 3. On February 14, 2011, Complainants filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2011-948. 4. As a result of the filed Complaint, the Registrar’s assigned inspector, Cliff Frandsen, performed a jobsite inspection to view the Complaint items. As a result of that inspection, Inspector Frandsen issued a Corrective Work Order dated March 30, 2011, that required Respondent to timely perform corrective work to specified Complaint items and also determined that no action was required by Respondent to other specified Complaint items. 5. The Registrar issued a Citation and Complaint in Case No. 2011-948 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (2), (3), namely A.A.C. R4-9-108, and (23). 6. The Registrar forwarded Case No. 2011-984 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. At the commencement of the hearing, Complainants’ counsel advised that the following Complaint items were no longer at issue: 1a. (Wrong doors installed); 1f. (Desk not completed); 4a. (Uneven tile); 4b. (Grout discoloration); 5a. (Crooked, improperly cut or unevenly set tile); 6a. (Drafts around doors and windows); 6b. (Seal around window seal); 7d. (Shower drain); 7h. (Fire place); and, 7j. (Closet door). 8. Complaint item 1b. alleges the following workmanship deficiency in Complainants’ kitchen cabinetry: “Hammer and sanding marks on trim.” The evidence of record established that this Complaint item meets workmanship standards. 9. Complaint item 1g. alleges “Unfinished trim” underneath Complainants’ trash compactor.” The evidence of record established that this Complaint item meets workmanship standards. Inspector Frandsen testified that the trim is not standard in the industry and does not need to be installed. 10. Complaint item 1h. alleges “Hardware unlevel.” The evidence of record established through the testimony of Inspector Frandsen that the hardware meets workmanship standards. 11. Complaint item 3a. alleges “Interior paint inadequately covers surface.” The evidence of record established that the interior paint meets workmanship standards. When Inspector Frandsen inspected this Complaint item, Complainants used specialty lighting to show the alleged deficient workmanship. Inspector Frandsen testified that such specialty lighting is not an industry standard for inspecting paint. 12. Complaint item 3b. alleges the following deficiency: “Front door paint uneven.” The evidence of record established that Complainants’ front door paint meets workmanship standards. 13. Complaint item 3c. alleges the following deficiency: “Damage occurred to blue bedroom during construction, paint patch does not match.” The evidence of record established that this Complaint item does not meet workmanship standards. Respondent failed to comply with the Corrective Work Order to timely remediate this workmanship deficiency. 14. Complaint item 5d. alleges the following deficiency: “”Shower dam uneven causing water on bathroom floor or shower door installation.” Complainants had another contractor remove and replace the shower pan. However, Complainants’ Complaint did not allege any deficiencies in the shower pan. Therefore, no corrective work is required by Respondent. 15. Complaint item 7a. alleges the following deficiency: “Trash compactor not secured.” Complainants’ trash compactor is located underneath their granite countertop. Inspector Frandsen testified that it has not been secured. However, Inspector Frandsen further testified that it is physically impossible to bracket the unit because of the granite countertop. 16. Complaint item 7c. alleges the following deficiency: “Gouge in front door.” Inspector Frandsen determined that the gouge in the door jam was caused by unknown persons closing the door with the dead bolt open, which damaged the jam. The gouge is still present. Respondent failed to comply with the Corrective Work Order requiring this item to be repaired in a workmanlike manner. 17. Complaint item 7e. alleges the following deficiency: “Patch and texture (dry wall) not matching throughout house.” Complainants showed Inspector Frandsen several areas of allegedly deficient patching and texturing using special lighting, which Inspector Frandsen testified is not the industry standard for examining such work. However, Inspector Frandsen did observe some areas of deficient workmanship by inspecting per industry standards. Respondent is responsible for performing remedial work to workmanship standards using industry standards for inspecting such workmanship and not by use of specialty lighting as used by Complainants. 18. Complaint item 7g. alleges the following deficiency: “Dishwasher not straight with counter.” The evidence of record established that the dishwasher is straight with the counter. However, the Complainants complained that the dishwasher sticks out of the counter. Inspector Frandsen credibly testified that the dishwasher is positioned properly because the controls for it are located on the top of the unit’s door. The top of the door is visible in the dishwasher’s present location. However, the controls would not be visible, such as lights indicating the unit’s cycle, if the unit were positioned flush with the cabinet. 19. Complaint item 7i. alleges the following deficiency: “Mantel and loose wood splinters.” The evidence of record established that this Complaint item has been repaired to workmanship standards. 20. Complaint item 7k. alleges the following deficiency: “Crown molding joints.” There are areas where caulking has shrunk. Inspector Frandsen testified that Respondent is only responsible for such workmanship for one year. Inspector Frandsen testified that Respondent made some repairs to caulking in Complainants’ bedroom, but that the caulking still requires additional work to meet workmanship standards. 21. There is no credible evidence establishing that Respondent deviated from plans or specifications, or that Respondent failed to comply with local building code requirements. 22. Any item of deficient workmanship raised by Complainant, either in their Complaint or during the course of this case, not specifically addressed in the above Findings of Fact is deemed to either lack sufficient evidence of record to support a finding of deficient workmanship, to meet workmanship standards, or to have not been noticed to Respondent in Complainants’ Complaint.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent failed to comply with plans or specifications on the subject project, or that Respondent failed to comply with local building code requirements. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. There is credible evidence that Respondent made a good faith attempt to comply with the Corrective Work Order. However, Respondent failed to remediate the deficient workmanship described in the above Findings of Fact Nos. 13, 16, 17, and 20. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship is described in the above Findings of Fact Nos. 13, 16, 17, and 20. RECOMMENDED ORDER Respondent’s License No. 161983 shall be suspended on the effective date of the Order entered in Case No. 2011-948 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has completed remedial work in a workmanlike manner to the items described in the above Findings of Fact Nos. 13, 16, 17, and 20. If the Registrar receives written proof that Respondent has completed remedial work in a workmanlike manner to the items described in the above Findings of Fact Nos. 13, 16, 17, and 20 on or before the effective date of the Order entered in Case No. 2011-948, and the Registrar approves such proof, then the above-described license suspension shall not take place and Case No. 2011-948 shall be closed. In addition to the above-provided penalty, if any, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Case No. 2011-948 shall result in the automatic revocation of Respondent’s contracting 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 payment of any outstanding prior civil penalty is tendered. 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.

Done this day, November 4, 2011.

/s/ Brian Brendan Tully 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