ALJDEC

97F-2345-ROC · Registrar of Contractors · 1997-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on November 4, 1997. The Complainant appeared in her own behalf, and the Respondent appeared through its qualifying party and one of its partners, Brian Lee Storey. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Pursuant to a written proposal and contract, Respondent agreed to and did construct an entry addition onto Complainant’s residential structure which was a rental property. The agreed cost price for the contemplated work was $15,700.00 which was subsequently increased by change orders to $16,699.85.

2. Complainant was shown to have paid Respondent all but $2,000.00 of the contract price and also to have paid the sum of $995.00 directly to a licensed specialty contractor for the repair of stucco work for which Respondent was responsible. Respondent admittedly has filed a lien against the property for the full amount of the unpaid contract balance, but also expressed a willingness to reduce the lien amount upon receiving

further proof of the aforesaid payment for stucco repairs. The filing of such lien and the pursuit of other available collection remedies was not shown to have been wrongful conduct on the part of Respondent.

3. At the outset of the scheduled hearing, Complainant stated that the sole items of her filed complaint presently remaining in issue between the parties related to those items treated in the below Findings of Fact. Any and all other items originally enumerated in the case file are either no longer in issue, have been subsequently rectified, would become one of the subjects of a civil lawsuit by claim or counterclaim, or were otherwise not being administratively pursued by Complainant.

4. Although the start of the project was shown to have been smooth and pleasant, the parties’ relationship became severely deteriorated as the work progressed, culminating in the termination of Respondent’s jobsite services by Complainant on May 20, 1997. The testimony of both parties was sharply conflicting with respect to the time and contents of various conversations and actions, and little or no basis is found to exist for the disbelief of either side’s version.

5. The evidence revealed that an unlicensed individual was utilized by Respondent in the performance of the stucco application, and subsequently some of the painting work, both of which formed part of Respondent’s contractual undertaking. Despite the fact that such unlicensed person was originally selected and recommended by the Complainant, who had also utilized the same individual for the performance of other work on the structure, Respondent did not take any steps to ascertain whether or not that individual possessed any contractor’s license. It is determined that Respondent had effectively aided and abetted the activities of an unlicensed person. The fact that Complainant’s actions may also have been improper and impermissible does not serve as a defense for Respondent.

6. Although the method of installation by Respondent of fascia boards above the front entry was not shown to have been improper, but rather was prudently intended to match the treatment of similar features on the rest of the dwelling, a degree of instability still exists which was credibly shown to be capable of being easily corrected by providing and affixing a bracing element. The actions by Complainant in terminating Respondent’s services had the effect of preventing any further correction of the fascia boards.

7. With respect to the interior drywall or finish, allegedly deficient in numerous and scattered locations, the only elements sufficiently proven to be presently in need of remedial work were the trim pieces around the front entry door and a not- unexpected quantity of nail pops on walls and the ceiling of the entry addition. All previously identified interior deficiencies had been sufficiently corrected by Respondent so as comport with prevailing industry standards or were never adequately demonstrated to have constituted unacceptable workmanship, including the rounding of the front-facing arched windows. Notice of the interior drywall or finish trim items presently in need of remedial work was not adequately communicated to Respondent whose termination from the project effectively precluded the performance of further corrective work.

8. The exterior stucco was not fully painted by Respondent following the necessary repair of the original stucco work. One coat had been applied by Complainant’s former husband, but Respondent never applied the required second coat of exterior paint. Nor was Respondent given the opportunity to perform or to arrange for the performance of such painting work.

9. The old doorbell at the former entry door location had been removed and a new bell reinstalled by Respondent during the work on the entry addition. Such doorbell has become inoperative, warranting appropriate corrective action, irrespective of whether or not the parties’ contract specifically mentioned or separately charged for such feature. However, the refusal to grant access by Complainant also prevented the accomplishment of any remedial work by Respondent on the doorbell.

10. A written document purporting to constitute an agreement of accord was shown not to have been the product of a mutual understanding to resolve all differences between the parties. Additionally, the fact that some portion of the further contemplated jobsite work was to have been performed by an unlicensed person must prompt the Registrar not to give any weight to the document nor to give effect to its enforceability.

11. Respondent was not shown to have been incapable or unwilling to accomplish appropriate remedial work on any of the items on which further repairs or corrections are needed. Similarly, there was an insufficient showing that Respondent had voiced threats or that the behavior of its qualifying party was such that a denial of access would have been justified. Since a contracting law violation against a licensed contractor is supportable only if such contractor fails to undertake and complete corrective action, after having received notice and an opportunity to rectify reported deficiencies in its work, it is determined that Complainant’s action in terminating Respondent on the project and in expressly advising Respondent not to return to the premises effectively prevented the performance of remedial measures. Any obligation to accomplish corrective work is superseded by a duty not to commit a trespass onto another person’s property.

12. It is further found and determined that Respondent had substantially complied with the provisions of a lengthy corrective work order issued by the Registrar’s assigned Inspector following a jobsite visit. The very few and minor items of repair or correction presently shown to be necessary were, in the Inspector’s opinion after again inspecting the premises, capable of being rectified by only an exceedingly small amount of work time and materials, despite the evidence of a somewhat dubious and an unreasonably high cost estimate presented at the hearing by Complainant.

13. Notice is taken of the Registrar’s licensing records which reveal that Respondent‘s Class B license has been suspended by operation of law since August 31, 1997 for non-renewal. Additionally, the testimony tended to indicate that the Respondent’s partnership entity had been dissolved and that the principal partners do not intend to continue operations as a residential general contractor.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established that Respondent has violated the provisions of A.R.S. §32-1154A (10). However, because of not being afforded an adequate opportunity to accomplish corrections of the few items of complaint shown to require minor remedial action, no violations by Respondent of any other charged subsection of the State’s contracting laws have been sufficiently proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that Respondent’s Class B license be suspended for a period of sixty (60) days of which only the first seven (7) days shall be active license suspension, and the remaining fifty-three (53) days shall be in the nature of disciplinary probation.

Dated: November 12, 1997. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on ______________________

By: ___________________________ , To:

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

ATTN: Hearing Dept. -----------------------

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