ALJDEC

97F-2462-ROC-RHG · Registrar of Contractors · 1998-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for a limited rehearing on April 27, 1998. The Complainants appeared through Daniel Waldor, and the Respondent was represented by its attorney, Jeremy Toles. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Limited Rehearing are made.

FINDINGS OF FACT

1. By separate Order of the Registrar, the instant rehearing was limited to certain identified issues.

2. Counsel for Respondent has twice filed a motion for an Inspection of the subject property, the most recent being several days prior to the Limited Rehearing date. Said motion was taken under advisement, and the contents thereof may be appropriately considered in the evaluation and disposition of this administrative matter.

3. One express purpose and limitation of the instant rehearing was to determine whether Respondent. has substantially complied with the terms of the parties’ settlement agreement, as read upon the record at the initial hearing. Out of 13 enumerated items that were the subjects of part of the previously concluded settlement agreement between the parties, Complainants asserted that 8 such items were still not properly rectified. Although Respondent had attempted to correct all 13 listed items,

the repairs performed had either failed or were left incomplete. In any event, it did not appear that Respondent was given adequate notification and an opportunity to verify or to undertake and accomplish further action with respect to these failed or ineffective repairs.

4. The parties have exhibited and continue to demonstrate a near- total inability to effectively communicate with each other, even through their representatives. This antagonistic and unproductive course of conduct has generated a realistic lack of reasonable progress in concluding this case. It is not a proper function of either the Office of Administrative Hearings or the Registrar of Contractors to monitor, superintend, organize and arrange for access to the property and/or the scheduling and performing of corrective measures on any jobsite. Consequently, to the extent that the performance of further remedial work may be warranted, any Order by the Registrar should provide for one, and only one, more opportunity for the parties, respectively, to tender and to accept further corrective work.

5. Conflicting statements were presented by the parties as to Respondent’s prior efforts or lack of efforts, with little or no basis found to exist for the disbelief of either party’s version. Irrespective of which version is more accurate, it must be emphasized that a licensed contractor should not find it necessary to retain the services of an attorney every time an on-site visit is deemed appropriate or prudent, especially for the purposes of preparing defenses to charged violations in the instant disciplinary action or for verifying reported jobsite conditions. Any future repetition of what has bordered on a deprivation of due process for the defending contractor should and will precipitate the automatic termination of these proceedings. However, under all the circumstances and albeit with some degree of hesitation, this tribunal is not prompted to hold that any waiver by Complainants of their entitlement to proper and effective remedial action should apply. Instead, the items still in issue, as more fully described below, should be corrected by Respondent. (Numbers at the end of each described item correspond to the numbers on the original Inspector’s work order).

6. The evidence at the hearing indicated that there was, admittedly, a slight difference in the front edge of the replaced kitchen countertop section when compared with the remaining unreplaced countertops, resulting from the necessity to use a new fabricator after the initial manufacturer went out of business. However, the evidence failed to sufficiently demonstrate that the extent of such difference was excessive or rendered the overall installation unacceptable according to prevailing industry standards and tolerances. It was, nevertheless, shown that deficiencies presently exist on the surface of the replacement countertop consisting of excessive gaps at the back-splash, of separations along the 45-degree miter joints and of the inadequate securing of the top to the base at some locations. These areas must be properly and effectively repaired by Respondent. (Item # 8).

7. Subsequent repairs by or on behalf of Respondent to visible cracks in the kitchen walls and ceiling were shown to have failed within a relatively short time period, and most of the cracks have reappeared. Respondent is required to accomplish further remedial work at all visible cracked locations, perhaps after securing a report and recommendations with respect to the soil or grading testing and the stabilizing of the structure, as discussed below. (Item # 10).

8. Gaps were shown to still exist at the baseboards along one wall in the middle bedroom adjacent to the master bedroom and bathroom. The baseboards must be properly corrected. (Item # 17).

9. Although the master bathroom tub was completely replaced by Respondent, the installation work was left incomplete in that a hole remained in the wall of the middle bedroom abutting the wall of the master bath. (It is noted that, irrespective of any lack of specific notification from Complainant, Respondent is chargeable with knowledge of this incomplete remedial effort which, in the exercise of reasonable supervision, should have been known to its workmen). Additionally, separations are visible in the caulking around the new tub, and the squeaking condition that prompted the replacement work has still not been acceptably eliminated. These deficiencies must be rectified by Respondent. (Item # 37).

10. Despite the replacement of the front entry door by Respondent, a gap has developed and presently exists at the threshold of that door. Such condition is

substandard and unacceptable, requiring effective remedial work by Respondent on this feature. (Item # 39).

11. A significant area of the exterior stucco surface has again become discolored as a result of some bleeding through from the subsurface. Respondent’s further re-painting and refinishing efforts at these locations will be required. (Item # 54).

12. An attempted repair to a crack in the concrete driveway has failed, thereby necessitating further corrective work by Respondent to effectively rectify this deficiency. (Item # 56).

13. A degree of water leakage continues to be experienced from the top of the Northeast window which was an additional subject of agreed repair work. Respondent must effectively remedy this leaking condition. (Unnumbered item).

14. The parties’ settlement agreement did not contemplate any corrective work on another enumerated item still in issue. The correction by Respondent of the excessive separation of the garage slab from the South stem wall (Item # 2) remains necessary. This repair, possibly entailing saw-cutting part or all of a slab section, although not yet accomplished, was to have awaited the outcome of additional soils and grading testing which, in turn, would be utilized in obtaining reports and recommendations formulated by experts with respect to appropriate measures for stabilizing the residential structure, if and as may be necessary or advisable.

15. Credible evidence at the rehearing tended to indicate the existence of some degree of continuing concern as to the dwelling’s structural integrity Since the parties were unable to agree upon any cost sharing for more extensive tests, reports or recommendations that were favored by and sought by Complainants, the responsibility for securing and acting upon such information must necessarily lie solely with Respondent and remain within its reasonably exercised discretion.

16. Nothing in this decision is intended to indicate that Complainants, as property owners, must grant access to their property or are otherwise compelled to allow expert testing and evaluation of any soil, grading or structural problems, nor to allow the performance by contractors of any recommended work on the jobsite. However, if a valid tender of remedial work is made by or on behalf of Respondent and refused by Complainants, or if the testing and evaluation by experts selected by and paid by Respondent is not permitted, then for the purposes of the instant administrative disciplinary proceeding, Respondent will be deemed to have discharged its obligations as a licensed contractor. By way of a further example, based upon the evidentiary presentations, if an expert’s report and recommendation specifically indicates that beneficial structural results will be obtained if gutters directing the flow or deposit of water away from the perimeter footings are installed on portions of the roof, and if access is effectively denied for such work performance, which should be re-tendered, Respondent’s responsibilities will be lessened or eliminated with respect to future failures of repairs.

17. Due to a reasonable anticipation that additional time will be needed in which to arrange for and complete testing and evaluation, as well as for acting upon recommendations obtained, any deadline date for complying with corrective work conditions that are included in the Registrar’s Order on Limited Rehearing should be extended substantially beyond the normal effective date of such Order (although the appeal time for judicial review should not and will not be similarly extended).

18. Based upon the prior history of dealings between these parties, any proposed testing, inspection or work performance dates should be communicated reasonably in advance to Complainants, together with a very generalized written description of the intended scope and purpose of any jobsite visit and together with a choice of an alternative date or dates. No testing, inspection or work performance shall be required on the part or on behalf of Respondent unless or until Complainants confirm to Respondent “in writing” on or before the selected date or dates both that access to the premises will be granted on those dates and that the performance of the proposed actions are to be permitted.

19. In light of the admitted lack of notice from Complainants to Respondent as to any failed repair items and the demonstrated ongoing difficulty in gaining access to the premises, it is determined that no additional disciplinary penalties against Respondent’s license should be imposed if all remedial conditions are properly and timely complied with by Respondent or if Complainants decline to timely authorize all validly tendered testing, evaluation or construction work.

CONCLUSIONS OF LAW

1. The totality of the evidence of record sufficiently established that Respondent did not properly comply with the terms of the parties’ settlement agreement, and that such failure reflects adversely upon Respondent‘s workmanship, also constituting a wrongful act to the detriment of Complainants and constituting non-compliance with the Inspector’s prior written directive, in violation by Respondent of the provisions of A.R.S. §32-1154A (7), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER ON LIMITED REHEARING

In view of the foregoing, it is recommended on Limited Rehearing, commencing sixty (60) days after the effective date of the Registrar’s Order (ninety-five {95} days after the date of mailing by the Registrar) that Respondent’s Class B license shall be temporarily and actively suspended until the Registrar receives proof that Respondent has caused appropriate testing of soils and grading, has secured reports and recommendations from experts selected and compensated by Respondent, and has accomplished all necessary corrective work on the items or areas set forth in Findings of Fact Numbered 6 through 14, inclusive, in a proper, workmanlike manner and consistent with the contents of any obtained reports or recommendations as well as with the terms or reasoning contained in Findings of Fact Numbered 15 through 18, inclusive.

It is further recommended that if Respondent properly accomplishes the above-described corrective actions on or before nine-five (95) days following the date of mailing of the Registrar’s Order on Limited Rehearing, or if Respondent is unable to accomplish such actions because of Complainants’ unwillingness to accept the same, refusal to grant reasonable and timely access to the premises for Respondent and/or its representatives, or failure to promptly transmit written authorizations accepting

Respondent’s valid tenders of testing, inspection or construction work and the on-site performance dates thereof, then no license suspension shall be imposed, and the entire Citation and Complaint in Case Number 97-2462 shall be closed.

The Registrar’s Order on Limited Rehearing, when entered, is a final administrative decision reviewable pursuant to A.R.S. §12-901. For the purposes of further judicial review, the Registrar’s Order on Limited Rehearing becomes effective thirty-five (35) days after the date of mailing by the Registrar.

Dated: May 8, 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