ALJDEC

97F-2711-ROC · Registrar of Contractors · 1997-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23 and 24, 1997 APPEARANCES: Lila Giovia, Complainant, in her own behalf Steve Scarcello, Qualifying Party and vice president, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT In approximately early October, 1996, the Complainant obtained a bid proposal from a salesman representing the Respondent. The bid was in the amount of $16,937.00, for the construction of an addition to the Complainant’s home. Based on the proposal, the addition was to be 36 ft. by 10 ft. with a 10 ft. by 10 ft. open patio. The interior of the addition was to include a family room, a half bath, sitting room and storage closet. The proposal also specified a 90 pound rolled cover roof, 2” x 10” joists, and a set of hollow core double doors. The Complainant accepted the proposal and paid an initial deposit to commence the project. After an unspecified period of time, the Respondent submitted the blueprints for the project which had been approved by the City of Phoenix, to the Complainant either the day before or the day that construction commenced. The Complainant did not understand the blueprints and they had not been explained to her. Based on the blueprints, the addition was to have 8 foot high interior walls, ceiling furr down in the hallway and bath area, CDX plywood for the roof, 2X8 blocking, anchors attached to joists, three way switches at specified locations, two 2X10’s for a header over the walk through between the sitting room of the addition and a bedroom in the house. During the course of construction which lasted from November 1996 to February, 1997, the Complainant began questioning the Respondent about various aspects of the project. She was told that any changes to the plans as approved by the city would cost extra. In approximately mid-February, 1997, the project was “green tagged” by the city and the Complainant made the final payment to the Respondent. On or about April 2, 1997, the addition experienced extensive water leakage through the roof. The Respondent covered the rolled roof with shingles in an attempt to correct the problem. The Complainant filed her complaint with the Registrar of Contractors (Registrar), on May 12, 1997. On May 28, 1997, Inspector Richard Stuart (Stuart) inspected the premises. On June 2, 1997, Stuart issued a Corrective Work Order (Order) to the Respondent. The Order required major work including but not limited to removal of the roof shingles and repair of the roof with proper materials, repair of interior damage from leakage, removal and reinstallation of French doors, sealing of windows, provide duct work and furr down per plans, and clip exposed nails and repair damage to the underside of roof sheeting. On May 14, and June 26, 1997, Greg Conrad (Conrad) a supervisor with the City of Phoenix Development Services, Building and Safety, went to the Complainant’s home in response to her complaint to the city. Conrad inspected the addition and made various findings including insufficient roof slope, an unsupported portion of the threshold, insufficient toilet clearance, inadequate gussets, loose siding and wrong sized header. On June 15, 1997, a Sunday, the Respondent phoned the Complainant stating he would be at the home at 7:30 a.m. to begin corrective work. The Complainant did not provide reasonable access to the Respondent to make the repairs although the Respondent’s efforts were untimely and it is questionable if the attempt to do corrective work was in good faith. Based on the evidence of record the following findings are made: A. Interior walls in the addition are between 7’7” and 7’8” rather than 8 feet; B. There is no furr down for duct work; C. Roofing material is OSB and not CDX, and nails are showing from the exposed underside of the roof in the patio; D. Blocking is with 2X6’s rather than 2X8’s; E. Not all roof joists (beams) are anchored and there are insufficient gussets on rippers under the patio roof; F. A three way light switch is on the wrong side of a wall and should be in the bedroom; G. The header over the walk through is two 2X6’s rather than the specified two 2X10’s, the 2X6’s are adequate; H. The roof has been repaired and covered with 3 tab shingles and its slope is only a quarter to a half inch for 12 inches, proper sloping is inches for 12 inches; I. Interior damage (hole and water damage in the ceiling and water damage around the windows), has not been corrected; J. A clean out is on the wrong side of a wall and not covered; K. A piece of molding over a kitchen window has a knothole; L. There is no duct work for a master bathroom exhaust fan; M. French doors are mounted in a door frame in such a way that the doors will not open as wide as they should and the threshold of the doors is inadequately supported ; N. Portions of patio trim are pieced together and appear unsightly; O. Siding is loose; P. The hallway and a hallway door are two inches wider than planned; Q. Complainant had to pay $90.00 for moving a gas meter out of the addition area; R. Ceiling damage in a breezeway area between the house and a storage room was done by the Respondent; S. There are no doors between the kitchen and family room as was called for by the proposal. Installation of the doors would violate code unless louvered or glass paneled for light and air access; T. Clearance between the toilet and the wall in the bathroom is one and a half inches less than code; U. There is inadequate evidence that the Respondent is responsible for a broken truss or a crack in the kitchen wall.

CONCLUSIONS OF LAW The Citation and Complaint alleges violation of A.R.S.§32-1154(A)(2), disregard or departure from plans or specifications, (3), violation of rule (A.A.C. R4-9-108 workmanship standards), (7), wrongful or fraudulent act, and (23) failure to comply with a corrective order. Based on the Proposal, the blueprints, the conduct, performance and testimony of the parties, the existence and the provisions of the contract have been satisfactorily established. The reliable evidence of record shows that the Respondent is in violation of A.R.S. §32-1154(A)(2), based on the findings of fact, paragraph 11, items A, B, C, D, E, F, G, H, J, L, P, Q, S and T. Violation of A.R.S. §32- 1154(A)(3) is established by the findings of fact listed in paragraph 11, items E, H, I, M, N, O and R. It is noted that items E and H address deviation from plans as well as poor workmanship. The above violations also constitute wrongful conduct with substantial injury as set forth in the statute. The use of the less expensive OSB rather than CDX raises serious questions about possible fraud. The proofs however were insufficient to sustain the allegation. No violation of (A)(23) is found even though the Respondent’s good faith in complying with the Order is questioned. The Complainant acknowledged she refused the Respondent admittance because he was untimely and because he had made offensive remarks. All of the matters mentioned in paragraph 11 are not recommended for corrective action because some of the violations are minor, do not endanger health and safety or are not justified based on economic waste involved in making a correction. However some of the corrective work which will be recommended goes beyond the Order issued by Stuart because the issues were raised after the inspection performed by Stuart. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished or caused to be accomplished appropriate and effective remedial work: By installing the furr down as depicted in the blueprints, and necessary ductwork or in the alternative, flex duct if acceptable under the city code (see also the Corrective Work Order item 11); By removing and replacing the 3 tab shingles on the roof of the addition with proper materials per plans (see also the Corrective Work Order item 2); By repair of all interior water and other damage caused by the Respondent with texture and touch up paint to match (see also the Corrective Work Order item 3); By clipping nails or staples and repair of damage caused to underside of roof sheeting in exposed areas (see also the Corrective Work Order item 4); By providing duct and venting for the master bath fan (see also the Corrective Work Order item 6); By removing and reinstalling the French doors, frame and threshold to meet industry and manufacturer specifications and standards (see also the Corrective Work Order item 7); By replacing siding trim where it has been pieced together (see also the Corrective Work Order item 9); By properly sealing all windows to no leak installation (see also the Corrective Work Order item 10); By inspecting and anchoring where possible, joists which have not been anchored; By placing gussets on rippers as required by code; By placing a three way light switch in the bedroom; By placing a cover on the clean out; By securing loose siding in a workmanlike manner; By reimbursing the Complainant $90.00 for the cost of moving the gas meter; By providing double hollow core doors, proper framing and hardware for the hanging of said doors between the kitchen and the family room. The Complainants shall be responsible for any modification to the doors and the actual hanging of the doors; It is further recommended that in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on disciplinary probation for a period of 120 days to commence on the effective date of the Registrar’s Order or the date on which notice of the Respondent’s compliance with the terms of the Registrar’s Order, is filed, whichever is later; It is further recommended that the Complainant grant reasonable access to the Respondent to accomplish the required corrective work upon 72 hours notice to the . . . . . . Complainant with said work to be accomplished during normal business hours or such other times as is agreed to by the parties. Done this day, November 10, 1997.

______________________________ ALLEN W. REED 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