ALJDEC decisions subject to certification as final

2013A-5408-ROC-res · Registrar of Contractors · 2014-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2014 APPEARANCES: Complainant was represented by Assistant Attorney General Montgomery Lee. Victor Padilla appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. KB-1.265743-D and KB-2.223399-D to Superior Custom Builders LLC (“Respondent”). Victor Padilla is the Qualifying Party for Respondent on both license numbers. On August 5, 2013, the Registrar received a Compliant against Respondent from Jolyn Crooks alleging poor work by Respondent with respect to the roof, stucco, windows, and other items during the renovation of her home. After the Registrar assigned the Complaint to an inspector, the inspector issued a Corrective Work Order on September 6, 2013, in which the inspector found as follows:[1] a. Improper pitch on roof and leaking The complainant did not have a useable ladder that I could get up on the roof to do a water test or check on slope. The respondent did state in first contract that this would be ¼” per foot in pitch and would be hot mop. The contractor changed his invoice stating this was a better system but it is not per workmanship standards and International Building Code “Asphalt shingles shall only be used on roof slopes of two units vertical in 12 units horizontal (17 percent slope) or greater. This is not to code or to standards and needs to be corrected. Contractor to Correct by Appropriate Means. b. Wood frame around roof never sealed or painted. This was not written into the contract but exposed wood needs to be painted since this is supposed to help the lower income individuals upgrade their homes. Contractor needs to paint exterior wood surfaces to protect the wood. Contractor to Correct by Appropriate Means. c. Stucco application on the exterior The stucco was not smooth to the surrounding existing areas and has cracked where new meets old. There was also stucco spilled on the ground and on some of the walls which need to be cleaned up. Contractor to Correct by Appropriate Means. d. Two windows not painted and applied stucco was wrong color The window at the living room had stucco but was wrong color and at the sons bedroom the stucco was never painted. This was not on contract to paint but one was done with the wrong color and the other wasn’t leading me to believe it was supposed to be painted. At the sons bedroom the stucco did not have a round corner and smooth. Contractor to Correct by Appropriate Means. e. Two new windows installed without removing the old window Two long slot type windows were installed at the upstairs but the old windows were left on the exterior and need to be removed. Contractor stated that the inspector for EDAC stated for him to install over existing. All other windows were removed and new installed. Contractor needs to remove and install the new to meet workmanship standards and by appropriate means. f. Damage to fireplace during window replacement At side of fireplace the pieces were replaced but not professionally done. Also one stone has already fallen out, and it looks as if contractor used mortar instead of thin set as needed. Contractor to Correct by Appropriate Means. g. Quality of new range Per email dated 5/18/2012 Contractor knew that homeowner was not happy with the stove that was installed and stated that he would correct when he got back to finish the job. Contractor to Correct by Appropriate Means to change out the stove as per verbal agreement back in May of 2012. h. Attic access door This door is not on the contract but contractor did install the door for access for the homeowner and did not install a stair door. Door is not framed or sealed correctly and has no knobs or closures. Contractor to Correct by Appropriate Means. i. Insulation Homeowner had other add more insulation and I could not tell if contractor ever installed any or if it was removed. Contractor to Correct by Appropriate Means. j. Placement of heating unit According to the contract the hearing unit was to be on the roof and when another roof was installed the heating unit should have been removed and reinstalled on the new roof. I called EDAC and spoke to Dorlene and found that the unit was the responsibility of the town of Eagar to inspect and ok. I called in inspector Bruce Ray and he stated that this issue was discussed with the contractor and that the contractor was told that the unit would need to be placed on the new roof. The inspector stated that he gave the contractor an option to find the installation instructions and if it could be left in the new attic area they would work with him on that if it just needed to be vented to the outside. He stated that the contractor told him that he could not find any instructions anywhere. The inspector stated that this was never shown to him that it had been corrected. Contractor to Correct by Appropriate Means.

The Registrar issued a Citation and Notice of Hearing against Respondent charging possible violations of A.R.S. § 32-1154(A)(2); A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158(B); A.R.S. § 32-1154(A)(23); and A.R.S. § 32-1154(A)(21). Respondent filed a timely written answer to the Citation and Complaint denying any violations. At a pre-hearing inspection, the inspector determined Respondent had taken no action on the Corrective Work Order. Hearing Evidence On or about February 17, 2011, Respondent entered into a contract with Jolyn Crooks for a project at her home. The contract was through the Town of Eagar Housing Rehabilitation Office. The contract did not have any advisement that the homeowner had the right to file a complaint with the Registrar of Contractors. The original bid sheet included the following items: a. Demo 16 windows and replace with aluminum bronze b. Frame down and add vinyl sliding door, door at top of stairs c. Energy star electric stove d. Roof and insulation- Redo foam insulation with 5” to hit R-30. Add ¼” slope per foot to existing roof & hot mop. Heater to remain on roof. e. Exterior French door, service and seal.

Exhibit R-70.

Improper pitch on roof and leaking At some point during the project, the plans for the roof changed from leaving it as a flat roof to a trussed roof. No written change order was submitted as evidence. The submitted plans from the truss manufacturer show that the trusses were built with a slope of one-half inch vertically for every 12 inches horizontally.[2] Mr. Padilla testified that while the trusses may have been designed and built with that slope, he installed them at an angle as to increase the slope to meet acceptable standards. Jose Gill, the Registrar inspector, testified that at the pre-hearing inspection, he was able to reach a section of the roof from the deck and measured the slope as being well below acceptable standards. Mr. Gill also stated that installing a truss at an angle was not within workmanship standards as the trusses are designed to be installed level and any changes could affect the engineering calculations. Mr. Gill indicated he observed signs of leaks inside the house, but was not able to complete a water test to verify those leaks because he could not get on the roof at the original inspection or the pre-hearing inspection. Wood frame around roof never sealed or painted. Mr. Gill testified that while it may not have been specifically included in the contract, it is common practice to paint any exposed wood on the exterior of a home to prevent rotting. Mr. Padilla stated that there was nothing in the contract requiring Respondent to do any painting in the project. Stucco application on the exterior Mr. Gill observed the stucco applied to the built-up section of the roof was not “feathered in” to blend with the existing stucco and was cracking. Mr. Gill also noted that there was spilled stucco on the ground and on some of the walls that should have been cleaned up by Respondent. Mr. Padilla testified that the stucco applied by Respondent was appropriate and it was the existing stucco that had been inappropriately applied. Two windows not painted and applied stucco was wrong color Mr. Gill testified that it appeared the stucco applied around one of the windows had been tinted in an attempt to match it to the existing stucco, but the colors did not match. While Respondent was not required to paint the interior under the contract, Mr. Gill stated that because Respondent attempted to tint the stucco, it had a responsibility to do it correctly. Mr. Padilla testified that the miscolored stucco surrounding the window was preexisting to the project. Two new windows installed without removing the old window Mr. Gill testified that Respondent installed two new long slot type windows while leaving the old windows in place. Mr. Gill acknowledged that, while there was a chance such a set-up could increase the R-value of the windows by one, it was still not within workmanship standards to install new windows without removing the old windows. Mr. Gill also noted that Respondent did not leave any other old windows in place in the project. Mr. Padilla testified that Respondent was instructed to leave the two old windows on to improve energy efficiency. Mr. Padilla did not present any written evidence regarding the purported instruction. Mr. Padilla also did not explain why the old windows were left on only these two windows and none of the others. Damage to fireplace during window replacement Mr. Gill noted the damage to the masonry work on the fireplace. Mr. Gill observed that the work replacing the stones was not consistent with the original work and that some of the stones were falling off because improper materials were used to adhere the stones. Mr. Padilla denied that Respondent caused any damage to the fireplace or attempted to repair the damage. Quality of new range Ms. Crooks testified that she was not satisfied with the quality of the new range given Respondent was paid $1,500.00 for a new range. Ms. Crooks stated she spoke to Mr. Padilla repeatedly and he assured her he would exchange it for a new range. Mr. Padilla testified that the range provided to Ms. Crooks cost between $750.00 and $850.00. Mr. Padilla indicated that delivery, set-up, and haul away of the old range accounted for the rest of the cost in the contract. Mr. Padilla referenced the warranty and other reasons Respondent was unable to exchange the range. Attic access door Prior to work on the contract beginning, Ms. Crooks had the door at the top of the stairs installed by someone else. During the course of the project, Respondent offered to install an attic access door in place of the door at the top of the stairs. Ms. Crooks testified that when she returned to the home one day, Respondent had cut a hole in her wood-paneled wall that was intended to be a door to the attic. Ms. Padilla admitted that she did not request that Respondent do any further work on the project because she was so disappointed with what Mr. Padilla had done. Ms. Crooks said the door was not big enough to easily access the attic area and that she could not readily move tubs through the door for storage purposes. Mr. Padilla testified that Ms. Crooks indicated she was satisfied with the door as it was placed. Mr. Padilla denied any problem with the way the door was installed. Mr. Gill testified that the door was not framed or sealed properly and that there was no handle or closing mechanism consistent with a typical door. Mr. Gill also indicated that during the prehearing inspection, he noted a bent nail had been installed to act as a stop and could be turned out of the way to open it up. Insulation Mr. Gill testified that he was unable to tell if Respondent had installed any insulation and that friends of Ms. Crooks had added some insulation to help her. Mr. Padilla admitted Respondent did not install any insulation because the contract did not make any reference to insulation. Mr. Padilla dismissed the reference in the bid that Respondent would “Redo foam insulation with 5” to hit R-30.”[3] Placement of heating unit Ms. Crooks testified that after the project was complete, her heating unit stopped working. Ms. Crooks was informed by a contractor that the heating unit should not be enclosed in the attic even with some venting installed. The contractor disabled the heater to prevent any harm to Ms. Crooks and her family. Mr. Padilla testified that the original contract specifically stated the heating unit was “to remain on roof” so Respondent was not required to move the heating unit. Mr. Padilla did not believe the change of the roof from a flat roof to a truss roof had any effect on the fact that Respondent was not required to move the heating unit. Mr. Gill testified that if the contract indicated the heating unit was to remain on the roof, the change in the roof structure from a flat roof to a truss roof would mean Respondent would have to move the heating unit onto the new roof so it would still be on the roof. Other Evidence Mr. Padilla raised multiple questions as to the license status of other people who performed work on the home including the door on the second floor and the heating unit. While Mr. Padilla tried to argue that the other people were not licensed by the Registrar and thus Respondent could not be held liable for the issues. These questions are not relevant to whether Respondent properly performed the work it contracted to do or corrected the items identified in the Corrective Work Order. Respondent did not make any attempts to return to the project to comply with the Corrective Work Order. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on May 5, 2014, Respondent’s License No. KB-1.265743-D was current and one complaint was pending against the license and Respondent’s License No. KB-2.223399-D expired on September 1, 2011, and had no complaints against it. CONCLUSIONS OF LAW The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). A.R.S. §§ 32-1151 to 32-1169. The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837, 838 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(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). Respondent acknowledged the initial contract called for a flat roof with a hot mop and that was changed to a truss roof without a written change order. However, none of the parties alleged that the change was not approved by Ms. Crooks. Therefore, the Registrar failed to establish that Respondent’s change of the roof was a departure from or disregard of plans in violation of A.R.S. § 32-1154(A)(2).[4] As to the issues raised in the Corrective Work Order, the Registrar established that Respondent failed to meet applicable workmanship standards. Specifically, the slope of the roof was not adequate; the exposed wood should have been painted; the stucco was not properly applied; the stucco around the windows was not properly colored/painted; the old windows should have been removed; the fireplace was damaged and improperly repaired; the stove was not of appropriate quality; the attic door was not suitable or properly finished; insulation was not installed; and the heating unit should have been moved onto the new roof surface. Therefore, the Registrar established that Respondent’s work was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[5] The parties acknowledge and agree that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(23).[6] The contract at issue had a total value of more than $1,000.00 and did not contain a provision advising the home owner of her right to file a complaint with the Registrar. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32- 1158(B)(9).[7] In Count Five of the Citation and Notice of Hearing, the Registrar alleges that, should the Registrar suspend or revoke any of Respondent’s licenses, such conduct and circumstances constitute a violation of A.R.S. § 32- 1154(A)(21)[8] and all Respondent’s other licenses should also be disciplined. The violations listed above are supported by the evidence and provide grounds for revocation of both licenses at issue. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar of Contractors shall revoke Respondent Superior Custom Builders, LLC’s License Nos. KB-1.265743-D and KB-2.223399-D. 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, May 5, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The statements in bold font are taken directly from Exhibit 3, the Corrective Work Order. [2] Exhibits R-75 and R-76 [3] Exhibit R-70. [4] 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 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. [5] 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.” [6] 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.” [7] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1158(B)(9) requires that any contract for more than $1,000.00 must include the following: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. [8] A.R.S. § 32-1154(A)(21) provides as follows: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: . . . . Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.

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