ALJDEC

96F-H0258-ROC-COM · Registrar of Contractors · 1998-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: June 1, 1998. APPEARANCES: Complainants appeared personally. Respondent was represented by its attorney, Michael Anderson. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, base upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The instant hearing was convened for the purpose of determining whether Respondent substantially complied with the terms and conditions set forth in the prior Registrar’s Order in this disciplinary action. 2. The Registrar’s Order directed Respondent to perform the following corrective work: the replacement of the one section of the garage floor by appropriate measures given its location somewhat in the center of the garage, and the repair of other rough or marked areas by appropriate methods; the repainting of all the non-matching touched-up areas; and the testing and any needed repair or replacement of portions of the sprinkler system. 3. On or about December 12, 1997, Respondent’s customer service manager wrote to Complainants outlining the scope of the remedial repairs to be performed at their residence and confirming the date of December 22, 1997 for the repairs to be performed. 4. On or about December 22, 1997, Respondent’s customer service manager and a concrete subcontractor went to Complainants’ residence to perform remedial work to the garage slab. Complainant Dale Hansen insisted upon an explanation of the proposed remedial repairs prior to allowing any work to proceed. Respondent’s concrete subcontractor explained that he intended to sawcut a small section of the concrete floor containing a footprint and repour that area. He also advised Dale Hansen that he would repair various rough areas. After receiving the explanation as to the proposed concrete remedial repairs, Dale Hansen became agitated because he wanted a total repour of the garage floor, which was his position at the prior hearing but not within the scope of work ordered by the Registrar. There is credible evidence that Dale Hansen then proceeded to threatened Respondent’s customer service manager at the jobsite. Jan Hansen, Dale Hansen’s wife, interceded to calm her husband down. Dale Hansen directed the workers to leave the garage without performing any of the remedial repairs. The workers left as directed by Dale Hansen. 5. On December 22, 1997, Respondent’s painting subcontractor sent two employees to Complainants’ residence to perform remedial painting. The credible evidence of record supports a finding that the remedial painting does not meet minimum workmanship standards. The remedial painting does not blend with highs and lows in the repainted areas. Respondent is found not to have properly complied with the prior Registrar’s Order as to the remedial painting. Respondent is responsible for not only causing a painting subcontractor to perform proper interior repainting to minimum workmanship standards but also for examining the remedial painting work to assure either that it meets minimum workmanship standards or that additional work be performed if necessary to have the work meet minimum workmanship standards. 6. On December 24, 1997, Respondent’s landscaping subcontractor went to Complainants’ residence and examined the irrigation system. There is no evidence that Respondent simultaneously or subsequently examined the irrigation system to assure that it meets minimum workmanship standards. The sprinkler system has water coming out of the sprinkler heads, albeit at inconsistent water pressure. Respondent is deemed not responsible for the water pressure supplied by the local water company to Complainants’ sprinkler system. There are several sprinklers that are out of adjustment. Complainants have regularly adjusted the direction of the sprinkler heads. While such adjustments are usually owner maintenance after a period of time, Respondent is found not to have properly caused the sprinkler system, including sprinkler heads, to be properly repaired. Respondent is deemed responsible for not only assuring that the system is inspected and repaired to minimum workmanship standards, but Respondent is also responsible for inspecting the remedial work of its landscaping subcontractor to confirm proper repairs have been accomplished. 7. It is determined that there is a major communication breakdown between the parties and a very significant degree of animosity. Complainants have elected to utilize the Registrar of Contractors to have their construction problems resolved and thus they should not be allowed to place roadblocks and hurdles against Respondent’s attempts to comply with the Order of the Registrar, such as Dale Hanson’s conduct when Respondent’s customer service manager and concrete subcontractor were present at the jobsite to assess and perform remedial repairs to the garage floor. 8. It is determined that Respondent should be permitted one final opportunity to offer to perform the ordered corrective work and Complainant should be permitted one final opportunity to unconditionally accept such an offer. However, those remedial repairs must be timely performed by Respondent to avoid imposition of disciplinary penalties by the Registrar. 9. Any unreasonable denial of access or interference by Complainants with the corrective work to be performed by Respondent or its subcontractors should be deemed by the Registrar to constitute compliance by Respondent with Registrar’s prior Order.

CONCLUSIONS OF LAW

1. Respondent is required to perform only the scope of work mandated in the Registrar’s prior Order in this matter. If Complainants are dissatisfied with the scope of the ordered corrective work, which resulted from an administrative hearing where each side was permitted to present testimonial and documentary evidence to support their position, their recourse is to timely seek administrative and/or judicial appeal of that ruling. 2. Respondent has not substantially complied with its obligation to perform the corrective work set forth in the prior Order of the Registrar in this matter. However, such non-compliance due to miscommunication and animosity between the parties should not serve as the basis for the imposition of disciplinary penalties against Respondent as provided for in the Registrar’s Order based upon the entire record in this matter. Rather, one final attempt by Respondent to perform the repairs prior to the imposition of those disciplinary penalties should be permitted.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license be suspended on the effective date of the Registrar’s Order on Compliance Hearing until the Registrar of Contractors receives written proof that Respondent has properly accomplished appropriate and effective remedial work to the following items:

1. The replacement of the one section of the garage floor by appropriate measures to minimum workmanship standards given its location somewhat in the center of the garage floor. 2. The repair of other rough or marked (the later meaning damaged versus being pointed out by Complainants which they previously had done) areas of the garage floor which do not meet minimum workmanship standards. 3. The repainting of all non-matching touch-up areas in the interior of Complainants’ home. 4. The testing, repair and replacement of sprinkler system necessary to meet minimum workmanship standards.

Any unreasonable denial of access or interference by Complainants which prevents Respondent from timely performing such corrective work shall be tantamount to Respondent’s compliance with the Registrar’s Order requiring such remedial work.

It is further recommended that if Respondent properly accomplishes the above described corrective work on or before the effective date of the Registrar’s Order on Compliance Hearing, then the above license suspension shall not take place and the citation and complaint in this matter shall be closed.

Done this day, June 18, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826