ALJDEC

97F-2462-ROC-COM · Registrar of Contractors · 1998-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for a compliance hearing on December 22, 1998. The Complainants appeared through Daniel Waldor, and the Respondent appeared through its owner and qualifying party, James Allen Kauffman. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance hearing are made.

FINDINGS OF FACT

1. The primary purpose for the convening of the instant evidentiary hearing was to enable this tribunal to determine whether or not Respondent has substantially complied with the terms and conditions of the Decision and Order on Rehearing entered by the Registrar of Contractors on June 19, 1998.

2. At the outset of the scheduled compliance hearing, Complainants confirmed that their claim of non-compliance related solely to those items of the prior Order on Rehearing that are addressed below. References are made to certain numbered Findings of Fact in the previously entered Order on Rehearing and to Item Numbers in the former Inspector’s written directive.

3. The most recent repair by Respondent to a 45-degree miter seam in the kitchen countertop was shown to fall within prevailing acceptable standards and therefore has satisfied the requirements of prior Finding Number 6 (Directive Item Number 8). Some degree of future homeowner maintenance in this area will be anticipated.

4. The master bathroom tub was shown to have been appropriately secured, and the installation is found to be sufficiently stable despite the return of some audible squeaking if weight is placed on a certain portion of this fiberglass unit. Respondent’s re-caulking around the tub has also been performed effectively. Respondent has complied with the mandates of Finding Number 9 (Directive Item Number 37).

5. Although a further caulking attempt was made to gaps along the baseboards at one wall of the second bedroom that adjoins the master bedroom, there is presently some excessive gapping which requires additional repair efforts by Respondent in order to achieve satisfactory compliance with the requirements of Finding Number 8 (Directive Item Number 17).

6. The front entry door continues to exhibit some extent of leaking through a small opening at a lower corner or heel of the door, necessitating additional adjustments to the weather-stripping or other corrective measures on the part of Respondent so as to comply with Finding Number 10 (Directive Item Number 39).

7. After having removed and replaced two of the concrete driveway sections, a patching attempt by Respondent on one other section has failed, and that section must now also be replaced. Although a minor crack in another adjacent section presently meets acceptable standards, that area must be closely examined during the required replacement work, and the additional removal and replacement of such adjacent section may potentially be warranted. Respondent has not complied with the requirements of Finding Number 12 (Directive Item Number 56).

8. As part of the overall corrective work performed by or on behalf of Respondent following the prior Order on Rehearing, a specialty subcontractor was sent

to the jobsite to rectify a leak at or around the Northeast living room picture window. The evidence tended to indicate that the window itself was not leaking but that water from another source or location, perhaps from the roof, was being deposited onto such window. Remedial work to curtail this leaking condition is necessary so as to comply with the intent of Finding Number 13 (Not a numbered Directive Item).

9. Respondent was shown to have arranged for a soils test and report through the same engineer who had previously submitted a written communication alerting Respondent to potential structural problems and the possible necessity of undertaking costly and extensive remedial work. The agreed repair or replacement of a portion of the garage floor slab in the Southwest corner of the garage to correct a separation between the stem wall and the floor slab, required pursuant to Finding Number 14 (Directive Item Number 2), was to have awaited receipt of such soils report and, if deemed necessary, to have also awaited the undertaking and accomplishment of measures to stabilize the soil or the structure itself.

10. The evidentiary showing at the compliance hearing was that the soils report, obtained by Respondent in compliance with the Registrar’s prior Order, revealed the present existence of adequate soil compaction and also indicated no need for extraordinary remedial measures with respect to stabilizing the soils or the structure. Moreover, it was further demonstrated not only that the earlier experienced movement of the structure has substantially ceased but also that the previous lifting of the slab had effectively become reversed so as to decrease the extent of gapping between the stem wall and the garage slab to otherwise normal tolerances. Consequently, Respondent’s most recent repair effort, consisting of a re-caulking of the gaps between the wall and the slab at the Southwest garage corner appears, after over a six-month time period, to have been successful as well as to presently conform to all applicable industry standards. These repairs, being consistent with the obtained report, are found to substantially comply with the terms of the prior Order.

11. It would be unduly and impermissibly speculative to assume that any excessive gapping condition will return in the future. In any event, if such repairs

should fail in the future, Complainants would still have, in addition to possible civil remedies, a period of two years after the last caulking repair in which to file a new, separate administrative complaint against Respondent after the giving of advance notice of the re-occurrence of excessive gaps and an opportunity to rectify a reported problem.

CONCLUSIONS OF LAW

1. The evidence established that, despite bona fide efforts and despite the correction of several items of required work, Respondent has not achieved substantial compliance with the terms and conditions of the previously entered Decision and Order on Rehearing in this matter with respect to some gaps along baseboards in a bedroom, weather-striping or related deficiencies at the front door, a degree of roof leakage onto a window, and previously patched driveway concrete slab sections,

2. No valid reason exists for depriving Respondent of the opportunity to avoid the re-imposition of a license suspension provided that all remedial work, as enumerated in the above Findings of Fact, is timely and appropriately accomplished.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended on compliance hearing that Respondent’s Class B license be suspended commencing on the effective date of the Registrar’s Order on Compliance Hearing(thirty-five {35} days after the date of mailing by the Registrar) until the Registrar receives proof that Respondent has accomplished proper corrective measures on the items set forth in Findings of Fact Numbered 5 through 8, inclusive.

It is further recommended that if Respondent timely and appropriately complies with the above-described corrective work conditions, the entire Citation and Complaint in Case Number 97-2462 shall be closed.

The Registrar’s Order on Compliance Hearing shall constitute a final administrative decision, not subject to the filing of any petition for rehearing, but is judicially reviewable pursuant to A.R.S. §12-901.

Dated: December 29, 1998.

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: Joyce Armijo -----------------------

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