ALJDEC decisions subject to certification as final

2012A-1205-ROC · Registrar of Contractors · 2012-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2012, at 1:00 p.m. APPEARANCES: Richard and Sharolyn “Skeet” Posey (hereinafter referred to as “Complainants” collectively and “Mr. Posey” and “Ms. Posey” individually) appeared through Sharolyn “Skeet” Posey. Sollers Construction LLC (hereinafter “Sollers”) appeared through its authorized representative, Wyle Bill Sollers (hereinafter “Mr. Sollers”). 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. Sollers is the holder of License No. KB-1.245892-D issued by the Registrar of Contractors. 2. This is a residential matter where Sollers constructed a new residence at 2617 W. Bobwhite Lane, Thatcher, Arizona for Complainants. 3. Complainants were dissatisfied with Sollers’ workmanship and filed a formal Complaint against Sollers with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an on- site inspection of Complainants’ residence. On March 21, 2012, Inspector Nieves issued a written Corrective Work Order directing Sollers to perform designated corrective work on Complainants’ residence no later than twenty calendar days from March 21, 2012. 5. The Corrective Work Order repeated Complainants’ complaint items and directed Sollers to perform certain corrective work as follows: Contractor to correct the following by appropriate means: 1. Cabinets are sticky and shiny: All cabinets do have a gloss finish on the outside and a satin finish on the inside they also feel sticky to the touch, needs to be corrected. 2b. Paint not completely covering trim: Several areas of door [jambs] are not completely covered, need to be properly corrected. 4. A/C unit does not sit on secondary containment: A/C unit is in attic and does not have a drain pan. Per the 2009 IRC, M1411.3 Condensate disposal: Condensate disposal from all cooling units shall be conveyed from the drain pan outlet.

6. Inspector Nieves testified that he spoke with Mr. Posey on July 17, 2012, and the only issue remaining was that the cabinets were sticky. Inspector Nieves stated that one of the cabinet doors had been taken away by Sollers’ insurance company.[1] 7. Inspector Nieves testified that he observed that the exterior and interior of the cabinets were sticky to the touch during his on-site inspection. Inspector Nieves testified that Sollers had failed to correct the cabinets and that Sollers had failed to fully comply with the terms of the Corrective Work Order.[2] 8. Inspector Nieves testified that the Sollers’ cabinet subcontractor applied the finish to the cabinets throughout the residence.[3] 9. Mr. Posey testified that the cabinets were dry to the touch when their new residence was first completed but that within three months the cabinets throughout the residence became shiny and sticky. Mr. Posey stated that Complainants did not apply anything to the cabinets that caused them to become sticky and shiny.[4] Mr. Posey’s testimony is found to be credible. 10. Mr. Posey testified that Complainants were contacted by an individual, identified as Scott Vivian, from Sollers’ insurance company to perform an analysis of Complainants’ cabinets. Mr. Vivian took one of Complainants’ cabinet doors for laboratory analysis to determine the cause of the sticky condition of the cabinets. Mr. Posey stated that Sollers’ insurance company declined to release the results of the laboratory analysis.[5] 11. Mr. Posey stated that his job was transferred from the Safford area to the Tucson area so Complainants were forced to sell their residence in Thatcher, Arizona. Mr. Posey stated that Complainants had no choice but to cause the proper repair of the cabinets in order to sell their house in Thatcher, Arizona. Mr. Posey stated that Complainants retained a licensed contractor that was in the process of re-staining and refinishing the cabinets.[6] . 12. On cross examination Mr. Posey acknowledged that the cabinets throughout Complainants’ residence were dry with a satin finish when Complainants moved into their new residence.[7] 13. Laurie Sue Sollers (hereinafter “Ms. Sollers”) testified that she does not know what caused the cabinets in Complainants’ residence to be sticky and shiny.[8] 14. Mr. Sollers testified that he believes that something was put on the cabinets after the cabinets were installed. Mr. Sollers acknowledged that he does not know who would have applied anything to the cabinets.[9]

15. Ms. Posey testified that every door and every drawer throughout Complainants’ residence is sticky to the touch. Ms. Posey stated that if someone touches a cabinet it leaves a fingerprint on the cabinet and that the cabinets cannot be washed or cleaned. Ms. Posey stated that the cabinets are sticky in areas where appliances would have to be moved to gain access to the sticky areas. Ms. Posey denied that Complainants applied anything on the cabinets after the cabinets were installed.[10] Ms. Posey’s testimony is found to be credible. 16. Ms. Posey testified that Mr. Posey was transferred to Tucson with a report date of May 1, 2012. Ms. Posey testified that Complainants listed their new home for sale because of the job transfer. Ms. Posey testified that Complainants were required to correct the cabinets in their residence to be able to sell their residence in Thatcher, Arizona.[11] 17. Complainants have caused the doors and drawers of the cabinets to be stripped by BIX Furniture.[12] Complainants are in the process of having the stripped doors and drawers reinstalled and re-stained and finished by A & K Painting Company (ROC License Nos. 063640/086209). Complainants’ total cost for correcting their cabinets is the sum of $16,630.00.[13] 18. No further corrective action on the cabinets is required. 19. The total cost of $16,630.00 for the correction of Complainants’ cabinets was shown to be reasonable and justified under the circumstances and less than the other bids obtained by Complainants.[14] 20. Ms. Posey stated that the last time that she spoke with Respondent’s insurance representative was May 23, 2012.[15] 21. Ms. Posey testified that she corrected the painting on the door jambs and that painting is no longer an issue. Ms. Posey stated that Complainants have found that their air conditioning unit has an integral drain pan and that no corrective work is required on the air conditioning unit.[16] 22. Ms. Posey testified that when Mr. Sollers returned the cabinet door to Complainants’ residence Mr. Sollers stated that it was Complainants’ responsibility to resolve the problem with the cabinets. Ms. Posey testified that Complainants then began their effort to locate a different contractor to correct the cabinets.[17] 23. Ms. Posey acknowledged that Sollers’ painting subcontractor contacted Complainants and attempted to gain access to Complainants’ residence to paint the door jambs. Ms. Posey acknowledged that Complainants did not allow the painting subcontractor access to their residence to paint the door jambs. Ms. Posey stated that Complainants contacted Inspector Nieves and were informed that it was one Corrective Work Order and that all of the corrective work required by the Corrective Work Order should be performed not just the painting of the door jambs.[18] 24. Credible testimony and evidence established that Complainants were fully cooperative with Sollers and Sollers’ insurance representative regarding the sticky or tacky surface condition of the cabinets. 25. Mr. Sollers testified that Respondent has built approximately 80 homes in the Gila Valley over the last seven years and that Sollers has always been responsive to customer complaints. Mr. Sollers stated that Sollers contacted its insurance company when the Corrective Work Order was issued. On or about April 5, 2012, Sollers’ insurance company, Century Insurance Group, issued a letter acknowledging receipt of Soller’s claim.[19] 26. Mr. Sollers testified that Sollers has not received a report of or about the investigation performed by its insurance company. Mr. Sollers stated that Sollers’ insurance company hired a testing laboratory to determine what caused the sticky surface condition of the cabinets. Mr. Sollers stated that Sollers wanted to find a solution to the surface problem before any corrective work was performed. Mr. Sollers testified that Sollers’ insurance company was working on the problem and Sollers was still attempting to find out what caused the problem with Complainants’ cabinets.[20] 27. Mr. Sollers testified that he informed Inspector Nieves that he was notifying Sollers’ insurance company of the problem with the cabinets. Mr. Sollers acknowledged that he did not ask Inspector Nieves for an extension of the twenty day time period set forth in the Corrective Work Order.[21] 28. Mr. Sollers testified that if Sollers or its cabinet maker caused the surface problem with the cabinets he wanted it taken care of. Mr. Sollers stated that he did not understand how one side of the wood could be sticky when the other side of the same piece of wood is not sticky. Mr. Sollers stated that Sollers’ insurance company is still working on the problem with the cabinets.[22] 29. Mr. Posey acknowledged that Sollers’ painting subcontractor contacted him several weeks after Sollers requested an administrative hearing and several weeks after the twenty day period set forth in the Corrective Work Order had expired. Mr. Posey stated that he called Inspector Nieves and was informed by Inspector Nieves that it was all one Corrective Work Order and that the matter was going to hearing.[23] 30. Complainants’ actions in causing their cabinets to be corrected by another contractor, after Mr. Sollers dropped off their cabinet door and stated that the condition of the cabinets was their problem, are found to be reasonable and justified under the circumstances. 31. Administrative notice is taken of Soller’s prior license record as reflected on the Registrar of Contractors’ public website on August 3, 2012. Such prior license record reflects that License No. KB-1.245892-D 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. All of Complainants’ cabinets were tacky or sticky to the touch on the outside and inside of the cabinets. The cabinets could not be cleaned. Credible evidence established that the only entities that applied anything to the cabinets were Sollers and Sollers’ cabinet subcontractor. The cabinets were not finished according to plans and specifications. The sticky or tacky surface condition of the cabinets does not comply with applicable workmanship and industry standards. This tribunal concludes that Sollers violated the charged provisions of A.R.S. § 32- 1154(A)(2)[24] and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[25] 4. Sollers did not correct the tacky or sticky condition of the cabinets as directed in the Corrective Work Order. Sollers failed to comply with the terms of the Corrective Work Order. This tribunal concludes that Sollers violated the charged provisions of A.R.S. § 32-1154(A)(23).[26] 5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order that License No. KB-1.245892-D of Sollers shall be suspended until the Registrar of Contractors receives and accepts written proof that Sollers has paid Complainants the sum of $16,630.00 as restitution for Complainants’ costs of correcting the damage to their cabinets. It is further recommended that if Sollers fully accomplishes the above described restitutionary action, 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 Sollers pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Sollers 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 Sollers’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Sollers, 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 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 3, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 7/17/12 Hearing Record (hereinafter “H.R.”) at 19:35-21:23. [2] H.R. at 21:30-23:30. [3] H.R. at 25:00-26:20. [4] H.R. at 27:40-28:25. [5] H.R. at 35:20-36:50. [6] H.R. at 37:00-38:30. [7] H.R. at 39:39-40:27. [8] H.R. at 47:40-48:45. [9] H.R. at 48:54-49:40. [10] H.R. at 51:34-58:59. [11] H.R. at 1:21:20-1:22:17. [12] No ROC License number provided. [13] See Exhibit C-9 (Invoices from BIX Furniture for refinishing and stripping and A & K Painting Company for re-staining and refinishing). [14] See Exhibit No. C-7 (Bid from Jay’s Construction Inc. for $28,518.25) and Exhibit No. C-8 (Bid from BNT Construction for $20,018.70). [15] H.R. at 1:57:30-1:59:56. [16] H.R. at 2:01:30-2:02:04. [17] H.R. at 2:03:00-2:08:18. [18] H.R. at 2:08:29-2:14:36. [19] See Exhibit No. R-4 (April 5, 2012 Letter from Century Insurance Company). [20] H.R. at 2:19:00-2:32:30. [21] H.R. at 2:33:00-2:34:00. [22] H.R. at 2:34:08-2:39:46. [23] H.R. at 2:41:25-2:43:27. [24] A.R.S. § 32-1154(A)(2) provides: Departure from or disregard of plans or specifications or any building codes of the 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. [25] A.A.C. R4-9-108 provides: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards. [26] A.R.S. § 32-1154(A)(23) provides: Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

-----------------------

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