ALJDEC decisions subject to certification as final

2012A-791-ROC · Registrar of Contractors · 2012-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2012 APPEARANCES: Brenda Davis appeared personally. The Fix It Guy, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Fix It Guy, Inc. (“Respondent”) is the holder of License No. B- 3.151858-R issued by the Registrar of Contractors (“Registrar”). 2. On August 1, 2011, Brenda Davis (“Complainant”) entered into an agreement with Respondent for remodeling work at her residence located at 19304 N. 67th Lane, Glendale, Arizona. 3. On February 13, 2012, Complainant filed a written complaint with the Registrar alleging deficient workmanship by Respondent on the subject project. The Registrar designated Complainant’s complaint as Case No. 2012-791. 4. In response to the filed complaint, the Registrar’s then-assigned inspector, Jim Hennessy,[1] performed a jobsite inspection to view the complaint items. As a result of that inspection, Inspector Hennessey issued a Corrective Work Order dated March 1, 2012, that addressed the original complaint items and additional items first raised at the jobsite inspection, as follows:

Note this contractor license was suspended for lack of bond and cannot do or subcontract the work in this Corrective Work Order until the suspension is lifted.

Note this complaint was numbered and lettered in the effort to clarify the complaint items, and will accompany this CWO.

#1. Roof had no new tarpaper, there are holes in the old tarpaper, a drip pan is missing there is no flashing around the chimney and garage edge of roof. Also some of the edge tiles have gaps between and under tile. 1.a Roof had no new tarpaper installed. It appears that there are two sheets of felt paper on the roof and it is industry standards to remove and install new felt. Therefore the contractor is to correct by the appropriate manner. 1. b On the south elevation of the house lower level the felt paper is sticking out and torn at various locations. The paper is sticking out and appears torn. Therefore the contractor is to correct by the appropriate manner, R-4-108A. 1.c Drain pan missing. It appears that this item was on top of the tile roof and not able to verify. There is no action required by the contractor at this time. 1.d No flashing around the fireplace chimney. There is flashing around the fireplace chimney and the complainant stated that does not leak. Therefore there is no action required by the contractor. 1.e There is no flashing on the garage and edge of roof. It is the opinion of this inspector not on contract and not required by the industry. Therefore there is no action required by the contractor at this time. 1f. Some of the edge tile have gaps between and under them. It appears that the Edge [tiles] in various areas one can see the old paint, different color and appears to be a gap. Therefore the contractor is to correct by the appropriate manner,R-4-108A.

#2. We bought new garage metal doors which are heavier than the old ones. The new rails and springs were not installed and rollers put in backwards which resulted in the door coming off the tracks, causing buckling, denting and tearing of the gasket. The rollers are to[o] small resulting in not being able to stay in the tracks, and doors,( double & single garage doors) are damaged and the some of the rollers are bent and damaged. Therefore the contractor is to determine the cause and correct by the appropriate manner. 2. a. Double garage door gasket is torn and does not seal the door. It appears that the gasket is torn and too far away from the garage with a ¾ inch gap to seal the door from the weather. Therefore the contractor is to correct by the appropriate manner.

#3. They took off old tile in [upstairs] bathroom and did not install new tile correctly. a. Tile not cut properly at front of double vanity. The tiles are cut in a sliver and vary in size from ¼-1/16 inch and aesthetically not good workmanship. Therefore the contractor is to correct by the appropriate manner, R-4-108A. b. Tiles not laid flat. There is excessive [lippage] at various areas of the 2x2inch tile installed and do not meet ROC or industry standards, therefore the contractor is to correct by the appropriate manner. c. On sides of vanity where the contractor removed the vanity did not remove glob and just painted over it. On both sides of the vanity there are blobs sticking away from the wall and look aesthetically terrible. Therefore the contractor is to correct by the appropriate manner.

#4. We bought a new patio door to replace sliding glass door it also was not installed properly and the latch can’t easily put in to secure . . . it, therefore it gives even when children push on it. It appears that the latch was not install[ed] correctly, and attempted to correct it by drilling another hole and did not fill in, in this inspector’s opinion is poor work. Therefore the contractor is to correct by the appropriate manner, R-4-108A.

#5. Did not paint the house properly. There are some areas that were completely missed and other areas that need to be touched up. It appears that there numerous areas that exhibit poor workmanship where the painter missed or did not edge the two different colors and one smeared on another at various locations around the house. Therefore the contractor is to correct by the appropriate manner, R-4-108A.

Note: these items added to the complaint by the complainant at the jobsite inspection, contractor not present.

4. a Contractor did not install any support the threshold of the patio door he installed. The contractor did not install any support for the aluminum threshold and it cantilevers approximately 2-21/4 inches past the stem of the house, and in the opinion of this inspector does not meet industry standards and a good install. Therefore the contractor is to correct by the appropriate manner.

6. Contractor got overspray on the stem while coating the patio slab. There is dark concrete coating on the white paint of the stem at various locations at back patio. Therefore the contractor is to correct by the appropriate manner.

7. The exposed edge of the roof tile are not with in industry standards. The complain[an]t was to give ROC the name of the tile so could verify the manufacture standards, and did not. Therefore not able to verify this allegation, no action required by the contractor at this time.

8. There is a large [gap] on the N/E corner of the front elevation second story. There is a ¾-1 inch gap between the fascias boards where they meet to make a 90 degree corner. Poor workmanship. Therefore the contractor is to correct by the appropriate manner, R-4-108A.

Note: These following complaint items were not able to be viewed by this inspector because can not walk on light weight tile roof, possible breakage. Therefore this inspector was not able to confirm these allegations; as a result no action is required by the contractor at this time.

9. Tiles not fastened to roof deck. 10.Cement in valley, valley metal. 11. No hip ridge pole. 12. No hip ridge seal. No adhesives at cut tile and no adhesive at lap of ridge tile.

14. The contractor made a mess of sealing around the patio door and did not put trim around it. It appears that the while sealing around the newly installed patio door that the contractor smeared the sealant on the exterior wall and did not trim it out. It is this inspector that this installation is aesthetically unacceptable and would not meet industry or ROC standards, R-4-108A. Therefore the contractor is to correct by the appropriate manner.

15. One of the trim on the door is cracked. It appears that there is a crack in the wood of the door and should be corrected in this inspector’s opinion. Therefore the contractor is to correct by the appropriate manner.

5. The Registrar issued a Citation and Complaint in Case No. 2012-791 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 6. The Registrar forwarded Case No. 2012-791 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing in Case No. 2012-791 that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 8. The commencement of the scheduled hearing was delayed fifteen minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. On August 1, 2012, the Registrar’s newly assigned inspector, Jim Dimond, performed a pre-hearing jobsite inspection to view the work required to be repaired by Respondent pursuant to the Corrective Work Order. 10. At the hearing, Inspector Dimond testified that he agreed with Inspector Hennessy’s findings contained in the Corrective Work Order. Inspector Dimond further testified that Respondent failed to comply with the Registrar’s written directive. 11. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. Respondent’s License No. B-3.151858-R was revoked on February 28, 2012, and multiple times thereafter. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. The revocation of Respondent’s License No. B-3.151858-R does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and regulatory violations in this matter. A.R.S. § 32-1154(C). 2. Pursuant to the provisions of A.A.C. R2-19-119(B), Complainant has 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. 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. The evidence of record established that Respondent failed to perform its work on the subject project in a workmanlike manner as set forth in the Corrective Work Order. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with the Registrar’s Corrective Work Order that required Respondent to timely perform remedial work to its deficient work in a workmanlike manner. RECOMMENDED ORDER In view of the foregoing, Respondent’s License No. B-3.151858-R shall be revoked in Case No. 2012-791 on the effective date of the Order entered in that case. In addition to the above-provided revocation, Respondent shall pay the sum of $500.00 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. 2012-791 shall result in the automatic revocation of Respondent’s contracting license for failure to pay the civil penalty, 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 the 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, August 23, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Hennessy has since retired from the Registrar.

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