ALJDEC; finished on 2-27-98/kaa

97F-2285-ROC · Registrar of Contractors · 1998-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 1998

APPEARANCES: Sharon Anton appeared representing herself. Joe Loges and Mark Vendetta, authorized employees of U.S. Carpentry, appeared representing Respondent pursuant to A.R.S. §32-1117.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The general contractor for Complainant’s new home was Intercontinental Builders of Arizona, Inc. (IBI), which company’s license was revoked in another matter in September 1995. IBI filed bankruptcy in November 1995. 2. Respondent was the framing and rough carpentry subcontractor at Complainant’s new home construction. Respondent was not completely paid on the job, and filed a Lien on the home. 3. On March 21, 1997, Complainant filed her complaint with the Registrar, reciting that approximately nine items needed to be corrected. Registrar scheduled a jobsite visit for April 29, 1997. 4. On May 8, 1997, Registrar issued a Corrective Work Order (CWO) to Respondent. It indicates that three items of the complaint required correction: the exterior front entry ceiling to be level; the front door framing to include a side light (window panel); and, leaking at the front door sill plate along with repair of the interior water damage. The CWO specifically notes that other items on the complaint were found either to be acceptable or were “other contractors responsibility”. 5. Respondent disagreed with responsibility for the items other than the front entry ceiling level. 6. In July 1997, Complainant filed a revised complaint with Registrar. This complainant recited additional items alleged to need correction by this Respondent: a) Carpenter’s framing done before a firewall was added to South side of home where it adjoins the next home; b) Carpenter’s leaving roof trusses too long along North side of Living room exterior, resulting in stucco application problems; c) Problems with the attempted repair of the exterior front entry ceiling leveling; d) Front entry door without a side light and the framing thereof; e) Water at the entry, the sill plate, and the inappropriate foundation; and, f) Water entering the house at the southwest corner where the home attaches the next home, allegedly due to improper framing. 7. Registrar scheduled a jobsite visit for July 29, 1997. No CWO was issued after this jobsite inspection. 8. On September 18, 1997, Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23 and 32-1154.A.3 specifically Arizona Administrative Code (A.A.C.) R4-9-108. 9. There was no response and, on October 17, 1997, Registrar issued its Order determining that Respondent was in violation of statutes as cited, and revoking Respondent’s License unless Respondent completed the items in the filed complaint and the CWO, in which event, its License would be placed on probation for 90 days. Additionally, Registrar determined that a penalty of $200.00 be imposed. 10. On October 30, 1997, Respondent filed a request for a hearing citing mailing address delays, misunderstanding of the response needed and its inability to receive clarification from Registrar’s office. On November 18, 1997, Registrar granted the petition for rehearing, and ordered the matter to be set for rehearing. On December 15, 1997, Registrar issued its Notice of Rehearing in this matter. 11. At the hearing in this matter, Complainant testified that she had requested the front entry door on Model C (a single entry with a side light), but she also stated that she had selected a standard entry door. One other option at this development was a double door. Complainant alleges that the foundation for her house had been poured for a double door, based on comparing some pictures. First, her February picture showing the house framed (with some installed windows), and specifically to the right of the door opening showing the framing in place on top of a poured foundation slab[1], not across any portion of the foundation and with no jutting edges, no landing or not step. Second, the subsequent February and/or March pictures[2] showing dry wall in place against, what she alleges to be improper, new framing across open ground areas, across a jutting edge of portion of the foundation, and framed at different angles than the February picture and than the plans. Complainant also submitted pictures[3] of a Model home [Lot 64] which shows a single door to be flush against a foundation edge with a step down, with no jutting edge or portion of foundation, and also clearly showing that the wall angles to the right of the model door are not the same as those framed and drywalled in the previous pictures of her home. Additionally, the picture of the Complainant’s completed door[4] shows wall angles and a foundation or landing unlike the model and unlike the plans. Complainant testified that she had made a January 1995 change order for a single entry door with a side light, and that Respondent should be held responsible for having or getting the latest changes before doing its framing at the front entry, so that they would have properly framed it. Registrar ordered that the front door framing be corrected for the side light, attributing this deficiency to be a framing problem, but did not address the foundation or landing issues. 12. Respondent argues this is not his responsibility because his position is that he framed the entry according to his contract with IBI. Respondent believes that the absent side light is attributable to the type of door unit which was installed, which he states was another subcontractor’s responsibility. 13. Complainant misreads the plan she submitted as the double door plan [See Hearing Exhibit C-4], which actually reads for a single door, as do the two other floor plans she submitted. 14. Additionally, Complainant testified that City of Scottsdale code requires that a landing must have a width not less than the width of the door, and that her door being 36 inches means that the landing she was given does not meet code. Complainant pointed to, and provided a copy of, Section 1004.10 of the 1994 Uniform Building Code. Although the landing was not specifically mentioned in either complaint, it is determined that the landing which was created, by the foundation and by the framing, at Complainant’s home falls within the foundation and framing issues clearly raised in each of the two complaints in this matter. 15. Respondent argued that the concrete foundation, its size and the landing created are not his responsibility, but are the responsibility of the concrete subcontractor and the general contractor. Respondent further argued that they framed the house according to the contract and plans. On query, Respondent did not provide, or bring to the hearing, any construction records from this home; therefore, was not certain that they had done any reframing of the home. 16. Complainant testified that water continues to seep into her home at the sill plate at the front door, and resulted in water damage to the baseboards. The parties seem to attribute this water seepage to the sill not being sealed correctly and/or the stucco meeting the concrete and not being extended past or below the sill. However, it is clear that the Registrar ordered correction of the water seepage or leakage and the interior damage from the water. 17. Respondent argued that the water seepage is not a framing issue. 18. Complainant testified that there is water coming into the house on the southern walls, at the east and west areas. Complainant attributes this to improper framing at those locations, primarily where her house abuts the house next door. Additionally, Complainant argues that there is no firewall in the walls which abut the house next door. Complainant presented a photo[5] of the framing in this area, which shows the home in progress, but does not appear to show the presence of a firewall in her home. However, this is not proof that, in the situation of abutting homes, either that firewall was required in her home, as opposed to being in the home next door, or that an absence of firewall was not “caught” by the city’s inspectors during their inspections or before giving a certificate of occupancy, and subsequently remedied by the contractor. 19. Additionally, Complainant testified that, after the exterior front entry ceiling was leveled and repainted, the painter who came out has caused damage by caulking the light fixture into place after the painting. The damage has come about because when Complainant had to get into the fixture to change a light bulb, she could not open it and the entire fixture had to be pulled off the ceiling to get to the fixture opening. The photos[6] presented show that the same color paint was under the caulking of the fixture to the ceiling, and that the need to remove the caulked fixture did cause the ceiling to be damaged. This was not an item stated in either filed complaint, but it has come about due to the corrective work repair of the level of the ceiling. 20. Administrative Notice is taken of Registrar’s records in the file which reveal that Respondent has had several complaints regarding workmanship filed against it, most of which were taken care of through compliance action. THE APPLICABLE LAW A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[7]

xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take 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 written directive from the Registrar... .

CONCLUSIONS OF LAW 1. A respondent’s failure to make corrective actions designated in a Registrar’s CWO is generally a violation of A.R.S. §32-1154.A.23. 2. It is determined that the exterior front entry ceiling repairs were inappropriately finished, resulting in damage to the ceiling, the light fixture and the paint. The testimony and evidence at the hearing with regard to the exterior front entry ceiling level repair resulting in poor workmanship and subsequent damage established violation, by Respondent, of A.R.S. §§32-1154.A.3, 32-1154.A.23 and A.A.C. R4-9-108. 3. The framing and subsequent drywalling at the front entry door was not completed in compliance with the plans for a single entry door, whether with a side light or not. Additionally, the resulting front entry continues to have water seepage problems at the sill plate. It is determined that the testimony and evidence regarding the framing of the front entry established violation, by Respondent, of A.R.S. §§32-1154.A.3, 32-1154.A.23 and A.A.C. R4-9-108. 4. There may have been contributing factors for the nonconformity with plans, and there may be joint liability for this condition, with regard to liability of the general and other subcontractors who worked on this area of the home. However, there was insufficient proof that the alleged “initial framing for a double door” either took place or was the reason for the nonconformance. Additionally, it must be stated that this Respondent did not supply the door unit which was actually installed, and whether the correct door was supplied or installed is not something that may be determined in this matter. 5. There is no proof that Respondent is responsible for the foundation as depicted in the photo of Complainant’s entry. Clearly, Respondent would have framed the home on a foundation poured by a concrete contractor. It has been determined that Respondent did not frame the front entry according to the plans, but the reasons and joint responsibility for that remain unclear. The evidence shows that outside the front door there is a portion of concrete exposed which resulted after the front entry framing was done on top of the foundation. If that exposed concrete is considered to be a “landing”, such a landing is not in compliance with building codes. However, the landing is not an item for which Respondent may be held responsible. No testimony or evidence was presented regarding the foundation size or plans, and it is unclear whether the foundation was according to plans or was to include either a landing or a step and what the size of either might have been. The testimony and evidence was insufficient to establish violation of statutes or codes by Respondent with regard to the foundation. 6. It would not be equitable to hold Respondent responsible for bearing the expense of tearing down or deconstructing the front of the house/front entry in order to accomplish the corrective work of reframing the front entry and then bear the cost of reconstructing the front of the house. The joint responsibility, of the general contractor and any other subcontractors, for the resulting front entry has not been determined. Complainant finds herself in the unfortunate position of her contractor having been revoked and bankrupt. Were Respondent the general contractor, there would be no question of responsibility. However, that is not the case. 7. There was insufficient testimony or evidence regarding water damage or problems at the southern walls, east and west. Unfortunately, securing such will likely call for deconstructive analysis. At this time, there is insufficient proof of this Respondent’s responsibility or liability for any such problems which may now exist. 8. There was insufficient testimony or evidence regarding lack of a firewall, or what the requirements are for any firewall under such a construction setting. Unfortunately, securing documented proof of a lack of a firewall, if one is required, will likely call for deconstructive analysis. At this time, there is insufficient proof of Respondent’s responsibility or liability regarding a firewall. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended commencing on the effective date of the ORDER of the Registrar entered in this matter, that the Respondent’s Class B license be actively suspended. 2. It is further recommended that Respondent have an opportunity to avoid the active suspension. Therefore, if by the effective date of the ORDER of the Registrar entered in this matter, Respondent completes and corrects its repairs to the entry ceiling as discussed herein and in the CWO, and further makes the CWO repairs to the sill plate and the interior baseboard water damage, then the above-provided license suspension shall not take place. 3. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of seven days followed immediately by a period of disciplinary probation for 30 days. The additional disciplinary penalty shall commence on the effective date of the Registrar’s ORDER entered in this matter or on the date on which notice of Respondent’s compliance with the terms of this ORDER is filed with Registrar, whichever is later. RECOMMENDED this day, February 27, 1998.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Original transmitted by mail this this _____ day of February, 1998 to:

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

ATTN: Joyce Armijo

By ___________________________ ----------------------- [1] See Hearing Exhibit C-6 photo. [2] See Hearing Exhibit C-8 photo, C-11 photo, C-7 photo and C-5 floor plan. [3] See Hearing Exhibit C-1 photo and C-2 photo. [4] See Hearing Exhibit C-12 photo. [5] See Hearing Exhibit C-18 photo. [6] See Hearing Exhibit C-15 photo, C-16 photo, and C-17 photo. [7] Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827