ALJDEC decisions subject to certification as final

2015A-1752-ROC · Registrar of Contractors · 2016-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2016 APPEARANCES: Ruth A. Jones, Complainant; Eric and Forest Wright, Respondent’s representatives; Peggy Conyer, Amy Pooler, Joe Garcia, witnesses; Mike Nieves, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant hired Respondent for the construction of Complainant’s new home. When Complainant filed a complaint with the Registrar of Contractors regarding some items, Registrar of Contractors Inspector Mike Nieves conducted a job site inspection and, on June 1, 2015, issued a Directive from the Registrar instructing Respondent to correct 9 items. 2. On July 7, 2015, Inspector Nieves conducted a compliance inspection and found that only 3 of the 9 items had been corrected. On January 4, 2015, he spoke to Complainant, who stated that Respondent had attempted more corrections; however, there was no pre-hearing inspection so he could not testify as to the workmanship of any of the corrections that Respondent made after the July 7, 2015 inspection. 3. Item 1 of the Directive states, “Granite top broken.” Photos show the granite countertop has 2 lines visible at the front and back of the sink that appears to be 2 deep cracks or seams. See Exhibit A. Although Respondent testified that such cracks or seams are common and natural, they are placed in such a way that the granite does not have a workmanlike appearance. Therefore, despite the fact that granite may naturally get seams that can be repaired, it did not meet workmanship standards because the final product was unattractive. 4. Item 2 of the Directive states, “Granite not sealed and cleaned properly.” Complainant argued that this item concerns portions of the granite countertops that appears to have speckles under the polish. See Exhibit D. Respondent argued that this is a natural variation. Complainant argued that granite should look smooth and clean everywhere. Inspector Nieves’ photos of the problem (Case file, Insp Complaint Submittal1.pdf, 5th and 6th photos from the top of the file) do not refer to the speckling. Rather, they make it clear that the issue he was referring to in the Directive was some “film/stain” that appears like streaks on the polished finish. Complainant offered no evidence to establish that the streaks still appear. Therefore, it was not established that Item 2 has not been repaired in a workmanlike manner. 5. Item 3 of the Directive states, “Metal support not installed.” At the hearing, Complainant stated that she “guessed” this item has been corrected and she questioned whether it was done properly. However, she offered no evidence to establish that the repair did not meet workmanship standards. As Complainant bears the burden of proof and no evidence was presented that it has not been corrected, this item should be considered corrected. 6. Items 4 and 9 of the Directive both state, “Garage door not sealed.” Inspector Nieves testified that one item referred to the side entry door and one referred to the car entry door. Forrest Wright testified that the car entry door was sealed and the side entry door was a standard outdoor door with a threshold and a sweep on it. He said he did not know how much better he can seal it. He said after Complainant said water was getting under it he put a better sweep on it. He said he went up to the door and saw no light under it. He said he tried to slip his license between the threshold and the door and couldn’t get it through but the door still worked. He said he tried to find a happy medium between having a working door but sealing out the water and bugs. Complainant’s witness Joe Garcia stated that he has seen rags on the floor when he goes to Complainant’s home, which he interpreted to mean that rain was getting under the side door. However, he did not say when he had seen the rags and insufficient evidence was offered to show that the door kept leaking after Respondent repaired it. Mr. Garcia said he could fix the door because, in his view, it is a minor repair. Nevertheless, Complainant has offered no evidence on when the door leaked or why it might be leaking. Therefore, she has failed to establish that the door was not repaired in a workmanlike manner. She offered no evidence to establish that the garage car door has not been repaired in a workmanlike manner. 7. Item 6 of the Directive states, “Carpet.” Forrest Wright testified that he sent a carpet company to repair the carpet seams. They also stretched the carpet more for a better fit. He said this was accomplished after the compliance inspection. He said he was told that Complainant was happy with the job they did. He said the carpet currently meets or exceeds workmanship standards. Complainant and her witnesses complained about the fact that the carpet needed to be repaired, but no evidence was presented to show that the carpet was not repaired in a workmanlike manner. Because Complainant has the burden of proof, this item should be considered repaired. 8. Item 10 of the Directive states, “Middle peakseam [sic] ceiling on back patio.” Forrest Wright testified that this was repaired and he hadn’t heard any more complaints about that. Amy Pooler, Complainant’s daughter, testified that if the seam has a patch on it, that’s pretty bad because a 2 year old house shouldn’t have any patches on it. However, no evidence was produced to show the quality of the repair. As Complainant has the burden of proof, this item should be considered repaired. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. As of the time of this decision, Respondent’s license is in good standing. 6. In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3) and (22) regarding the cracks or seams in the granite around the kitchen sink because, although cracks and seams are a naturally occurring event, they should not be installed if the result is unsightly. The placement of the cracks or seams around Complainant’s sink make it look as though the granite crumbled during installation. 7. Although the Directive identified other areas in need of repair, Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. In this regard, the Registrar of Contractors generally allows contractors a reasonable opportunity to complete necessary remedial work. Respondent made those repairs. 8. Complainant failed to offer sufficient evidence to establish that any of the other items in the Directive did not meet workmanship standards after they were repaired. Although she may have questioned whether they were done right or may not have liked the result, this is not enough to establish that they failed to meet the objective standard that the Registrar of Contractors supports. Complainant offered photographs of the granite but no photographs of any other problem. Therefore, Complainant cannot prevail on any other issue. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license, Number 260079 be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, January 19, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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