ALJDEC decisions subject to certification as final

2011A-992-ROC · Registrar of Contractors · 2011-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared through his attorney, Chris J. Kimminau. The Respondent appeared through its attorney, Sean E. Brearcliffe. 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. 180615) License issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the Community Services Department of the City of Tucson (“Department”) agreed to provide money for the rehabilitation of the Complainant’s residence located at 106 E. Pastime Rd. Tucson, Arizona in the total sum of $10,766.00. 3. Pursuant to the funding requirements imposed by the Department, the Complainant executed a perpetual lien against his residence in the sum of $2,866.00 as his contribution towards the initial contract price. 4. The Department then solicited construction bids from previously approved contractors for the rehabilitation project for the Complainant’s residence. 5. The Respondent submitted a written bid to perform the designated rehabilitation work on the Complainant’s residence to the Department. 6. There was no dispute that the Respondent’s bid was accepted and that the Respondent and the Complainant then entered into a written construction agreement for the performance of the rehabilitation work set forth in the Respondent’s bid. 7. There was no dispute that the Respondent performed rehabilitation work on the Complainant’s residence pursuant to the terms of the Respondent’s bid and the parties’ construction agreement. 8. The Complainant was dissatisfied with the Respondent’s workmanship and requested that the Respondent properly correct its work to the Complainant’s satisfaction. 9. When the Respondent failed to comply with the Complainant’s requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on February 28, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 11. The Corrective Work Order provides, in pertinent part, as follows: #1 – “No permit – spoke to Clayton @ City of Tucson Dev services”. No permit is required for window and door replacement, outlet replacement or toilet replacement as long as locations are not changed. No action required.

#2 – “Flooring is uneven due to installing tile over existing flooring”. Contractor to complete project according to all written and verbal contract agreements.

#3 – “The contractor has agreed to change back door to include operable window”. Contractor to make appropriate corrections according agreement verified in 2/28 phone call.

#4 – “Grout is cracking in various areas”. Contractor to make appropriate corrections according agreement verified in 2/28 phone call.

#5 – “Contractor needs to caulk in other areas”. Contractor to make appropriate corrections according agreement verified in 2/28 phone call. #6 – “Improper stucco repair”. Contractor to correct by appropriate means.

#7 – “Patio door damaged while installers were changing the handing. Also screen is missing (Added at inspection)” Contractor to make appropriate corrections according agreement verified in 2/28 phone call.

#8 – “Upstairs toilet runs all the time”. Contractor to make appropriate corrections according agreement verified in 2/28 phone call.

#9 – “Downstairs toilet tank rocks back and forth”. Contractor to make appropriate corrections according agreement verified in 2/28 phone call.

#10 – “6 outlets installed in wrong locations”. The contractor stated that his contract required him to install 2 kitchen outlets and 6 others that he installed according to the complainants instructions. Without a plan or contract documents, and different recollections of events, the inspector cannot determine the locations intended by the contract. No action required

#11 – “Tile not lined up properly”. (Added at inspection) 2 to 3 tiles in the living room showed a variance beyond industry standards. Contractor to correct by appropriate means

#12 – “Upstairs window leaks.” The complainant stated that the sill had been repainted after the last rain and window caulking. The leak was not shown at the inspection. The contractor stated that the repairs were done and there was no longer a leak. No water damage was apparent at the inspection. No action required.

12. Credible testimony and evidence established that the parties were in sharp disagreement as to what item #2 of the Corrective Work Order required and as to whether any corrective work was required regarding the installation of the floor tile over the existing vinyl flooring. 13. Credible testimony and evidence established that the Respondent’s written bid proposal required the Respondent to remove the vinyl in the kitchen and bath areas of the Complainant’s residence and then install a new ceramic tile floor in the kitchen and bath areas. 14. There was no dispute that the Respondent installed the new tile floor in the Complainant’s residence over the existing vinyl flooring. 15. The Respondent asserts that it had authorization from the Department to install the new ceramic tile over the existing vinyl flooring in the Complainant’s residence. 16. Credible testimony and evidence established that the Complainant did not give his permission for the installation of the tile over the existing vinyl flooring in the Complainant’s residence. 17. Credible testimony and evidence established that the Respondent did obtain authorization directly from the Department to install the new ceramic tile over the existing vinyl in the Complainant’s residence. 18. Credible testimony and evidence established that the Department maintains that the Department is in charge of the construction project based upon its funding agreement with the homeowner and that the Department has full authority to grant authorization for changes in the original bid proposal. 19. Credible testimony and evidence established that the installation of ceramic tile over existing vinyl flooring is an acceptable industry practice. 20. Credible testimony and evidence established that the new ceramic tile floor complies with applicable industry and workmanship standards for lippage and flatness. 21. The parties’ dispute regarding the installation of the new ceramic floor tile over the existing vinyl in the Complainant’s residence is found to be a purely contractual matter which necessarily involves a third party, the City of Tucson, and which must be resolved, if at all, in a civil court of competent jurisdiction. 22. Credible testimony and evidence established that the Respondent did attempt to gain access to the Complainant’s residence to comply with all of the remaining items set forth in the Corrective Work Order and that the Complainant denied access to the Respondent based upon the Respondent’s refusal to remove the ceramic tile floor and the underlying vinyl flooring and then install a new ceramic tile floor in the Complainant’s residence. 23. The parties’ dispute regarding item No. 2 of the Corrective Work Order is found to be a good faith dispute which prevents a finding that the Complainant’s denial of access in this matter was unreasonable. 24. The credible testimony and evidence of record was insufficient and failed to support a finding that the Respondent departed from or disregarded applicable plans or specifications or building codes in this matter. 25. Credible testimony and evidence established that the Respondent’s workmanship on the remaining items set forth in the Corrective Work Order fail to comply with applicable workmanship and industry standards. 26. The Respondent shall fully comply with the terms of the Corrective Work Order other than item No. 2 of the Corrective Work Order. 27. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the remodeling work in his 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 construction 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 the necessary remedial work set forth in the Corrective Work Order other than item No. 2 of the Corrective Work Order. 28. 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. In view of the finding that the parties’ dispute regarding the tile floor installation is a purely contractual dispute and the finding that there has been a denial of access to the Respondent to fully correct the remaining items of the Corrective Work Order, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) is supportable in this matter. 5. The credible testimony and 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) (2) (failure to comply with applicable plans or specifications or building codes). 6. Credible testimony and evidence supported findings which establish that the Respondent violated 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). 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 written Corrective Work Order issued in this matter, with the exception of item No. 2 of the Corrective Work Order, or the Registrar of Contractors receives and accepts written proof that the Complainant has denied the Respondent reasonable access to the Complainant’s residence. It is further recommended that if the Respondent provides acceptable proof that it has fully accomplished the above described corrective action, on or before the effective date of this Order, or that the Respondent has been denied reasonable access to the Complainant’s residence to complete the items set forth in the Corrective Work Order other than item No. 2 of the Corrective Work Order, then the above provided License suspension shall not take place and that this matter 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, August 8, 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