ALJDEC

97F-3021-ROC · Registrar of Contractors · 1998-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1,1998 APPEARANCES: Suz Martz, Complainant, in her own behalf Dennis Wilenchik, Attorney at Law, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT 1. In October, 1994, the Complainant and Respondent entered into a contract for the purchase of a home built by the Respondent. 2. The Complainant moved into the home in January, 1996. 3. The Complainant requires a wheelchair for her daily activities and this was taken into account with certain modifications being made to the home. 4. Prior to the instant complaint, the Complainant had filed a complaint against a subcontractor, Goldstar Cabinets, Inc. (Goldstar), who was no longer in business and whose license had been revoked. 5. The Complainant filed the instant complaint with the Registrar of Contractors (Registrar) in June of 1997. 6. Inspector Dick North (North), of the Registrar’s office, performed an inspection of the home and issued a Corrective Work Order (CWO) on August 7, 1997. The CWO required the Respondent to correct a kitchen sink cabinet to allow for greater freedom of wheelchair access, and exterior peeling paint. 7. A revised CWO was issued by North on September 30, 1997. The revised CWO no longer required any work on the kitchen sink cabinet opening because North had concluded the cabinet as installed was the one specified in the contract. The CWO referenced but made no determination of amounts for credits claimed by the Complainant and required the Respondent to: A. Repair or replace a light lens on the cabinetry; B. Correct a defective area in the top refrigerator panel and lower a panel rail; C. Caulk the inside of cabinets; D. Re-install toe kicks for three sink base doors; E. Install bumpers on doors throughout; F. Install missing crown molding; G. Correct an efflorescence problem by appropriate means; H. Correct non matching touch up paint on the house walls; I. Correct the expansion joints at the appropriate time; J. Correct a missing half hot receptacle; K. Correct a stucco repair crack. 8. On October 29, 1997, North sent a letter (FL 7 Attachment) to the Complainant which essentially stated that 10 items apparently submitted as an addendum, did not require any additional correction by the Respondent. The letter also informed the Complainant that she could request a hearing on the determination. The only issue from this list of items which was the subject of evidence at the instant hearing was, the air conditioning compressor and circulation problem. 9. By letter from the Complainant, received by the Registrar on November 10, 1997 (Exhibit B), the Complainant listed the following items: A. Kitchen sink cabinet door opening; B. Lacquer finish on cabinetry; C. Hall bath needs door fronts realigned; D. Crown molding is missing; E. Two shelves missing from linen closet; F. A light at the rear of the house is not properly centered; G. Fifty dollars due for the replacement of the garage occupancy sensor; H. Failure to finish guest bath and countertop; I. The stucco demonstrates a photographing effect of the chicken wire lath; J. Expansion Joints continue to oxidize. 10. Of the items listed in paragraphs seven through nine, some were the subject of evidence at the hearing which resulted in specific findings of fact. For other items, no evidence, or insufficient evidence was presented and no such specific findings were made. Items referenced in paragraph 7(A), (B), (C), (D), (E), (F), (J), (K) and 8(C), (D), (F), (G), and (H) either had no evidence or insufficient evidence presented and these issues do not merit further discussion. Each issue for which some noteworthy evidence was presented shall be separately discussed in the following paragraphs. 11. The issue of the air conditioning was not addressed in the November letter by the Complainant to North (Exhibit B), after North determined the issue had been resolved in his October 29, 1997, letter to the Complainant (FL 7 Attachment). The Complainant had raised the matter as item X. I. On her August 5, 1997 list (Exhibit 1). It is apparent that the Respondent was not taken completely by surprise by the issue being raised at the instant hearing and was able to present a defense to the assertion by having available the subcontractor who installed the air conditioning. There are two Lennox compressor units on the west side of the Complainant’s home. The area enclosing the units consists of the house on one side, a six foot solid fence on the other side and a six foot solid fence on the third side of one unit. There is unlimited space above the units. Lennox recommends a spacing of at least 12 inches for two sides of the unit and 36 inches for the other two sides (Exhibit 2). Two sides of the Complainant’s compressors are estimated to be nine or ten inches from the side of the house and a fence. On the third side of one unit the distance to the fence is estimated at 21 inches. Jim Heath (Heath), of Sonoran Air which installed the units testified the Lennox recommendation was not binding and that he could vary from it based on his judgment. According to Heath, the distance recommendations for placement of the compressors relate to venting the unit and the most important consideration is the availability for venting upwards. Heath testified he tested the units and there was no indication that they were not functioning properly or were otherwise adversely affected by the placement. 12. The problem with the kitchen sink cabinet is that although the external width of the cabinet is 36 inches, interior width with the doors open is approximately 28 or 29 inches. The Complainant’s wheelchair is 27 inches wide. When using the sink (the cabinet doors are open) and after positioning herself and the chair partially under the sink and then attempting to back out, the front wheels of the chair turn 180 degrees. When the front wheels are turning and in a sideways position, the width of the wheelchair is approximately 28 ½ inches, and depending on when the wheels turn, they may bump or catch on the wood framing of the recessed toe kicks under the cabinet doors. The toe kicks were recessed for aesthetic reasons so they would match the rest of the cabinetry in the kitchen. The external width of the cabinet was specified as 36 inches in the design signed off on by the Complainant in June of 1995, and the fact that the Complainant was in a wheelchair was considered by Goldstar, the subcontractor for the cabinets. The larger 39 inch sink base was not installed because the 36 inch base is standard and the additional three inches might have affected other dimension considerations for the cabinetry. 13. A cabinet door which was brought to the hearing for demonstrative purposes showed that the lacquer finish on the top edge of the door was wearing off or that lacquer had not been properly applied. According to the testimony of Joel Stern (Stern), a witness for the Complainant and cabinetry contractor, there are a number of areas of the cabinetry which do not have a lacquer finish. However, the total area missing lacquer is minimal. No specific workmanship standard regarding the application of lacquer was cited. The Respondent’s witness, Harvey Goldvarg (Goldvarg) of Goldstar, testified that the cabinetry requires some maintenance (wiping with lemon oil was recommended), and if such maintenance is not provided the wood will dry and wear. North testified that in his opinion the lacquer finish was failing but that the lacquer finish was within workmanship standards. 14. A wood cover panel on the front of the dishwasher is smaller than the front of the dishwasher and aesthetically unacceptable. 15. There was no dispute of the fact that the outline of the wire lath can be seen at about nine or ten feet high on a wall in the patio. North testified that in his opinion, the thickness of the stucco was satisfactory. 16. North testified that the minor paint differences at the west wall did not require any action by the Respondent but some minor paint peeling on the east side needs to be repaired. 17. The expansion joints were agreed to be corrected at the appropriate time by the subcontractor who was not a party to the hearing but was present as a witness. This is no longer an issue for this hearing. 18. Based on the evidence presented, the efflorescence problem and deterioration of cement at the east and west side of the garage stem wall was possibly due to improper maintenance due to water pooling in one area as a consequence of landscaping alterations and excessive hosing and cleaning of the garage. The evidence that this was causative of the problem was somewhat speculative. However, the Complainant did not present sufficient evidence that the condition was attributable to the Respondent. 19. There was insufficient evidence to determine how many, if any, shelves were missing from the cabinetry. CONCLUSIONS OF LAW The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A)(3), violation of any rule specifically A.A.C. R4-9-108 workmanship standards, (A)(7), wrongful or fraudulent conduct with substantial injury to another, and (23), failure to take appropriate corrective action. 1. It was determined at the hearing that the issue of asserted credits was not a proper subject for the hearing. This was because the issue was not sufficiently identified or subject to proof based on available evidence in the Complainant’s possession at the hearing. Essentially, the Complainant wanted an itemized financial accounting and disclosure of all upgrades in order to determine if she had been properly credited by the Respondent for various items (24 items listed in a letter to Phillip Pettice of the Registrar’s Office dated March 2, 1998). The issue was not ripe for hearing because the Complainant wanted to utilize the hearing as a discovery tool in the hope of obtaining evidence to determine if the credits were appropriate rather than having evidence ready for presentation at the hearing for the purpose of proving that the items listed in the March 2, 1998 letter, had not been properly or accurately credited to her. This is an improper use of the hearing process which is primarily for the purpose of presenting evidence already known or available to prove specific issues rather than searching for evidence in the hope of finding something which will support a suspicion. 2. The question of the air conditioning is resolved in favor of the Complainant. The Respondent’s witness testified the compressor was not installed in conformance with the recommendations of the manufacturer. Although this assertedly has little or no effect on the functioning of the unit (the answer was somewhat qualified by the issue of how much high speed use the units would sustain), it is concluded that such installation does not satisfy the general requirement of A.A.C. R4-9-108(A). Manufacturer’s recommendations are made for a reason and should be deviated from when supported by articulable reasons. The deviation was not supported by such reasons. Heath of Sonoran testified the problem could be corrected with minimal difficulty by moving and turning the units or by ventilating the fence. 3. The issue of the kitchen sink cabinet opening is resolved in favor of the Respondent. The Respondent was aware of the Complainant’s physical condition and could reasonably anticipate the fact that the Complainant required special access for the wheelchair. Goldvarg of Goldstar did in fact measure the wheelchair. However, the Respondent cannot be reasonably required to know that the front wheels of the Complainant’s wheelchair turn 180 degrees upon backing out from the sink, causing the wheelchair to be wider when the wheels are at right angles to the chair and periodically catch on the recessed toe kicks. 4. The Complainant did not prove the cabinetry lacquer finish issue by a preponderance of the evidence. 5. The evidence supports a violation of A.A.C. R4-9-108(A) from an aesthetic point of view with respect to the wood panel which fails to cover the front of the dishwasher. It should be replaced by a properly sized piece. 6. Although the testimony of North was that the visible outline of the wire lath in the patio did not need correction because he believed it met required stucco thickness, and the testimony of any of the Registrar’s inspectors on matters of construction is entitled to great weight, it is concluded that if the shadow of outline of the wire lath is visible, then the stucco does not meet the general requirements of A.A.C. R4-9-108(A). This should be corrected to eradicate the outline. 7. The minor paint peeling on the east side wall requires some correction according to North and his testimony was not challenged. 8. The Complainant presented some evidence that 36 shelves were to be provided with the cabinetry (Exhibit 3). The Respondent presented evidence of a change in this number due to the converting of some shelves to drawers. There was no specific evidence about how many shelves were or were not actually provided and therefore no basis to make a determination on this allegation. 9. Paragraphs 2, 5, 6 and 7of these conclusions establish violations of A.A.C. R4-9-108. No violation of A.R.S. §32-1154(A)(7) or (23) is found.

RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Respondent’s Class B license be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the items set forth in paragraphs 2, 5, 6, and 7 of the Conclusions of Law or the parties have otherwise agreed to disposition of those issues; It is further recommended that if the Respondent accomplishes the above described corrective work, or the parties have otherwise agreed to disposition of the matters requiring correction, on or before the effective date of the Order entered in this matter, then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, April 8, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

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

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 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