ALJDEC

97F-2096-ROC · Registrar of Contractors · 1997-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 1997

APPEARANCES: Complainant Nancy Ehlen appeared on her own behalf; William Schipper appeared for Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns remodeling work Respondent did for Complainant’s home. The parties presented evidence and testimony at the hearing. After the hearing, Complainant sent a letter (Exhibit 9) to this tribunal that added to her presentation. The record was reopened and Respondent was given a chance to respond to the letter, but failed to do so. This case is now ready for determination and, based upon the entire record, the Administrative Law Judge makes following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent in violation of the statutes. FINDINGS OF FACT 1. In December 1996 through February 1997, Respondent remodeled Complainant’s kitchen and bathrooms, built a patio, changed the carport into a garage, built a closet in the master bedroom, and made a doorway into a wall between Complainant’s master bedroom and her Arizona room. Complainant was not satisfied with several aspects of the work and filed a complaint with the Registrar of Contractors (ROC) at the end of February. 2. ROC Inspector John Ratcliff inspected Respondent’s work on March 25, 1997, and found several areas that needed correction. On March 31, 1997, he issued a Corrective Work Order (CWO) that included the following areas of correction: Complaint #1--poor quality and inadequate drywall work in the Arizona Room, master bedroom and bath, and around two windows; Complaint #4--kitchen cabinet trim was improperly installed; Complaint #5-- garage drywall needed clean-up on the inside and there was loose siding on the outside; lack of a permit for the patio (no complaint number); and Complaint #7--a change order reimbursement for the bathroom vanities. Respondent had corrected the other complaints before the ROC on-site inspection. The CWO gave Respondent 15 days to make the ordered corrections. 3. The evidence shows that Respondent made no effort to comply with the CWO. 4. On April 7, 8, 9, and 10, 1997, Complainant had workers from her husband’s Minnesota company, MiKit, in her home to paint. (Exhibit 7.) These workers cleaned the inside of the garage, fixed the loose siding, and fixed the kitchen cabinet trim. In short, they corrected the items in Complaints 4 and 5 before the time for complying with the CWO had expired. However, as noted above, Respondent did not attempt any corrections anyway. 5. At the hearing, Respondent admitted that he had neglected to get a permit for the patio, but he insisted that the patio was built to code. Also, Respondent denied any responsibility for drywall texture near the windows in the master bedroom and kitchen (Complaints 1f and 1g). Respondent admitted some of the poor drywall work, but blamed the poor wall texture on the painters. He also blamed the loose siding on Complainant’s sprinklers and delay in painting the siding. 6. Complainant presented evidence showing that the original contract for the remodeling included removing and replacing all windows (Exhibit 8) and that she and the painters tried very hard to cover up the poor drywall, but it was to no avail because the workmanship was so poor. Complainant’s evidence is persuasive as to the drywall, the windows, the garage clean-up and siding, and the cabinet trim. 7. Another issue between the parties concerns a change order for the bathroom vanities (Complaint 7). Prior to entering the original contract, Complainant asked Respondent if the vanity drawers, which were both right next to the bathroom doors, could be moved to the opposite sides of the vanities, away from the doors. Respondent indicated that that was okay and ordered vanities with drawers on the left side, away from the door side. When these arrived, Respondent discovered that the sink placement in the new vanities had necessarily changed and that the plumbing would now need to be modified. He brought this problem to Complainant’s attention. Complainant asked Respondent if it would be less expensive to reorder vanities with drawers on the right or change the plumbing. Respondent replied that reordering would be the more economical choice. The parties then verbally agreed to split the cost of the reorder. Respondent billed Complainant for half of the cost in the change order (Exhibit 5). 7. Later, after she paid Respondent in full, Complainant changed her mind about sharing the cost of the reorder. She testified that she feels Respondent should be completely liable for any extra costs because he did not tell her at the beginning that the plumbing would be a problem. She asserted that since Respondent was “the construction person,” he should have known and informed her about the requirements to change the drawers before he agreed to do it for the price stated in the contract. Inspector Ratcliff agreed with Complainant and, in the CWO, ordered Respondent to reimburse or credit Complainant. Respondent has not done so because he feels that the mistake was not entirely his fault, that Complainant agreed to share the cost, and that splitting the cost is fair. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated any provision of the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met the burden in regard to all of her complaints that were brought to hearing. 2. The evidence shows that Respondent violated A.R.S. § 32- 1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108, because he performed poor quality work on Complainant’s drywall, windows, garage, siding, and kitchen cabinet trim; also, because he failed to obtain a permit for the patio. 3. The evidence further shows that Respondent violated A.R.S. § 32- 1154(A)(23) because he failed to respond to a properly issued Corrective Work Order. 4. Finally, the evidence shows that Respondent violated A.R.S. § 32- 1154(A)(7), a “wrongful act,” by sharing the cost of the vanity reorders with Complainant. This Administrative Law Judge agrees with Complainant and Inspector Ratcliff: Respondent is the contractor responsible for the job and should know or find out about the plumbing modifications that are associated with it. Respondent bears the burden for the extra charge associated with the vanity reorder. Of course, Respondent is also entitled to possession of the unused vanities. 5. This tribunal hereby takes official notice of Registrar of Contractors public records pertaining to Respondent. These records reveal that Respondent has had a license for many years with no disciplinary actions. Respondent’s license is currently suspended by operation of law for failure to renew in April 1997. The suspension does not deprive this tribunal or the Registrar of Contractors of jurisdiction to hear this complaint and issue an order. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any contractor to undertake and complete necessary remedial work to avoid a suspension of an already suspended license. 6. Although Complainant has stated that she does not want Respondent back to make corrections because she feels he is not competent to do the drywall repair, this Administrative Law Judge finds that an appropriate resolution must include an opportunity for Respondent to make corrections on CWO items 1a through 1g. The circumstances of this case do not warrant a deviation from the Registrar of Contractors’ long-standing policy of allowing licensees an opportunity to correct their own deficiencies, except where incompetence is overwhelmingly clear or where the licensee poses a threat to the complainant. There is, however, concern about Respondent’s lack of response to the CWO. That conduct provides a basis to impose a civil penalty. This tribunal also finds that a term of probation would be appropriate should Respondent correct the deficiencies and renew his license. 7. Finally, an issue has arisen in this case because of Complainant’s action in getting Complaint items 4 and 5 corrected by others. Because items 4 and 5 have been corrected, Respondent need not do so. However, Respondent has been found to have violated the statutes with regard to those items, therefore, Complainant may attempt to seek recovery for her expenditures on those items, as shown in Exhibit 7, from the Residential Contractors’ Recovery Fund. This tribunal expresses no opinion about whether Complainant will recover any of those expenditures from the Fund.

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. . . RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class B license be revoked on the effective date of the Order entered in this matter It is further recommended that if Respondent accomplishes the three remedial tasks described below, on or before the effective date of the Order entered in this matter, then the license revocation imposed above shall not take place. The three remedial tasks that Respondent must perform to avoid revocation are: (1) appropriate and effective remedial work on the drywall deficiencies described in Complaint #1 of the Corrective Work Order, (2) obtain a permit for the patio, and (3) reimburse Complainant $205. It is further recommended that, if Respondent completes the three remedial tasks above and renews his license, the license shall be immediately placed on disciplinary probation for one year. It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $250 to the Registrar of Contractors as a civil penalty pursuant to A.R.S. §32-1154(D).

Done this 1st day of December 1997.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of December 1997, to:

Mr. Michael P. Goldwater, Director ATTN: Joyce Armijo Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

By ________________________ -----------------------

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