ALJDEC

97F-2824-ROC · Registrar of Contractors · 1998-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 1997 and January 14, 1998.

APPEARANCES: Scott Ferris, Esq., for the Complainants; Peter Andricopoulos, qualifying party, for the Respondent.

ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

Based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Pursuant to written contract, Respondent agreed to construct a residence for Complainants at, 10725 E. Quartz Road, Scottsdale, Arizona (the “Home”) and install landscaping. Complainants allege certain deficiencies in the work performed by Respondent which are set forth in Exhibit A attached hereto and incorporated herein by this reference. 2. At the outset of the hearing, Complainants represented that items numbered 22,44,46,47,48,50,52,53,55,61 and the handwritten portion of item 30 no longer require corrective action. During the course of the hearing, Complainants withdrew item number 49 and represented that items 15,19, 20,21,27and 31 are items that are addressed in other items listed in Exhibit A and, thus, are duplicative items. Complainants and Respondent stipulated that items numbered 1,4,5,7,8,12,13,14,18,28,33 (with respect to the multiple holes in the equipment rooms),39,59,60,63 and 66 were in dispute. 3. Respondent admitted that other than the above-mentioned items which are either in dispute, have been corrected or are being withdraw, the remaining items listed in Exhibit A, attached hereto and incorporated by this reference, are items as described therein which require corrective work by the Respondent. Those items are as follows: 2,3,6,9,10,11,16,17,23,24,25,26, 29,30 ( with respect to the cracked wood around the garage doors),32,34,35, 36,37,40,41,42,43,45,51,54,56,57,58,62,64 and 65. 4. The weight of the evidence of record was sufficient to support a finding that the following items listed below, as set forth in attached Exhibit A, constitute substandard and unacceptable workmanship attributable to Respondent: a) the front door is bowed, contains nicks, molding is missing, the glass is scratched, the front handle is damaged, trim around door is a different color than the door, and the door does not function properly in that there is a gap when the door is closed; b) A portion of the exterior lighting on the east side of the Home does not work and electrical wiring is exposed; c) a leak is present in the watering system which causes it to not function properly; d) Respondent selected and installed plants in inappropriate locations Those plants died and have been replaced by Complainants. There was no request made for restitution for the plants; the landscape was inappropriately installed in that the property is experiencing erosion due to insufficient diversion of water and absorption of waterflow from the street and other neighboring properties; erosion has caused damage to cacti, walls, the front driveway and the property; Respondent is responsible for preventing erosion and taking measures to restore the property to its previous condition prior to the erosion. e) exterior aluminum vent on exterior of the Home is unpainted and aesthetically unacceptable; stucco on the exterior of the Home including the base of the Home and the retaining and exterior walls constructed by Respondent have excessive cracking and chipping; f) drainage holes in walls around the Home are unfinished, irregularly placed, not uniform in appearance, are aesthetically unacceptable and fail to provide proper drainage; cement in rear patio has cracks which require repair and prior repaired concrete is different color than original concrete and needs to be replaced; g) rear retaining walls have excessive cement along base of wall which is aesthetically unacceptable; h) retaining wall and wall used for overspill for negative edge swimming pool is uneven and constant overspill that was not corrected by pool subcontractor or Respondent caused erosion of property and damage to wall; Complainants have corrected the overspill problem through another licensed contractor; however, Respondent is responsible for repairing the damage to the property and walls caused by the excessive overspill; i) the “kool” deck around the pool and spa is rough; j) there are multiple holes in the walls of the two equipment rooms which serve no purpose; k) the toilet paper rollers in the five bathrooms were not installed correctly in that the brackets holding the roller are spaced too far apart and the towel rings were installed in an inappropriate location causing the towels to lie in a portion of the sink; l) The marble installed in the master bedroom on the countertops in two locations, one by the large sink area and the other by the smaller sink area, contain grooves and, thus, is aesthetically unacceptable; m) the floor in the master bedroom is uneven in that one area is of a different elevation than the remaining area; n) the side of the driveway is chipping and cracking and is subject to erosion due to water flow; o) the retaining wall of the swimming pool that serves as a reservoir which connects with the side of spa is uneven; damage to exterior of reservoir walls and cracking between sap wall and retaining wall. 5. Respondent admits that some of the above-mentioned items require corrective work but claims was looking to direction from the Registrar of Contractors and the Administrative Law Judge through the hearing process as to direction. Respondent’s contention that some of the items were not addressed because they were vaguely expressed in Exhibit A or duplicative is without merit. Dr. Fountis credibly testified that she and Peter Andricopoulos, a member of Respondent and Respondent’s qualifying party, prepared Exhibit A over the course of one year. 6. On July 31, 1996, Registrar of Contractors Inspector Dick North made a courtesy inspection of the Home and informed the parties that cracks in the concrete in the garage and back patio should be repaired. 7. On June 17, 1997, Inspector North conducted a jobsite inspection of the Home and as a result issued a Corrective Work Order requiring Respondent to correct certain items, install certain items and perform additional work and replace certain items. The Respondent was notified of the jobsite inspection but did not have anyone attend the inspection . Mr. Adricopoulous informed Inspector North that he would not be able to attend because he would be in Europe. 8. The Corrective Work Order required the remedial work to be performed within 25 days of issuance of the Corrective Work Order. The evidence of record establishes that Respondent did not comply with the Corrective Work Order within the fifteen day time period. 9. Other than as set forth above, all other enumerated items of the Complaint were either shown to be within acceptable industry standards or matters upon which Complainants failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. 32-1154(A)(7),(23) and (3),namely, A.A.C. R4-9-108.

RECOMMENDED ORDER Based on the above, it is recommended , commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth above in Findings of Fact 3 and 4(a)-4(o) . It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, the above-mentioned license suspension shall not take place. It is further recommended that in addition to the above-mentioned suspension, if any, that Respondent’s Class B license be placed on disciplinary probation for a period of 60 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above, that Respondent pay a civil penalty of $125.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). The failure of Respondent to pay the entire amount of the above-mentioned civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S.32- 1101(A)(3), unless payment of any outstanding prior civil penalty is tendered to the Registrar of Contractors.

Done this day, January 27, 1998.

__________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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