ALJDEC

97F-2286-ROC · Registrar of Contractors · 1997-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 1997 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president, Craig Jones. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Complainant contracted with a general contractor, Intercontinental Builder of Arizona (hereafter “Intercontinental”), to have new home construction accomplished. Complainant alleges a specified deficiency in the concrete work performed on the project and claims that Respondent is responsible for said deficiency. 2. It is important to note that Intercontinental filed for bankruptcy, thereby causing an automatic stay of proceeding against said contractor. Thus, Complainant filed the instant complaint against Respondent, who she contends was the concrete contractor on this project. 3. Undisputed evidence of record established that an error was made when the concrete was placed for the front entry of Complainant’s home, in that same was placed for a double entry door when, in fact, Complainant was only to receive a single standard feature entry door. When the error in construction was caught, framing remedial work was accomplished to accommodate the single entry door and to make the best use possible out of the manner in which the front entry stoop was placed (for a double entry door and at the same level as the interior floor slab). However, the concrete as poured was not in the normal configuration for a single entry doorway. Apparently the configuration for the stoop for a double entry doorway has created a situation wherein the stucco application terminates on top of the concrete stoop. 4. Due to the above-described error in placing the concrete in the front entry area, rain water was shown to pond on the entry slab and eventually work its way into the interior of the home on a specified wall of the front entry area, thereby causing specified interior water damage in said area. 5. Regarding the issue of who, besides Intercontinental, is responsible for the above-described deficiency, the following salient facts were adduced at the hearing and are important to note: a. Respondent is a corporate licensee showing Curtis Craig Jones as qualifying party and Connie Jones as Secretary-treasurer. b. Undisputed evidence of record established that although Respondent holds a contractor’s license, it has never personally undertaken any construction contracts. Thus, Respondent did not perform the construction work at issue herein. c. Curtis Jones and Sons Inc. was shown to be the contractor that placed the concrete on Complainant’s home. Respondent’s qualifying party, Curtis Craig Jones, was shown to be the vice-president on this license. The business of Curtis Jones and Sons was purchased by C S Construction which then changed their name to C J S Enterprises, LLC. Curtis Craig Jones’ name does not appear on the license of CJ S, LLC but he is currently employed with said company. 6. Although Curtis Craig Jones’ name appears on the license of the contractor (Curtis Jones and Sons, Inc.) that was shown to have placed the concrete for Complainant’s home, said association does not, under all of the salient facts and circumstances presented herein, effectively create liability for Respondent. 7. Complainant may still have rights to file a complaint against Curtis Jones and Sons, Inc. Although this tribunal is mindful of the fact that any such new complaint filed against Curtis Jones and Sons, Inc. may be vulnerable to a statute of limitations defense, the Registrar of Contractors may consider joining in such a complaint in order to obviate any such defense and thereby assist Complainant in pursuing her claim against the proper entity responsible for the concrete construction deficiency. In the alternative, Complainant should seek relief from the above-described Bankruptcy Court automatic stay and if such relief is granted she may then pursue an appropriate legal action against Intercontinental.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, November 13, 1997.

_______________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of November, 1997, to:

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

By _______________________________

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