ALJDEC

97F-H0207-ROC · Registrar of Contractors · 1998-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 1998.

APPEARANCES: Complainants appeared through Kenneth Euell

Respondent appeared through its owner and qualifying party, Thomas Lee Carney.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At the outset of the scheduled hearing the Citation and Case Caption in this matter were amended so as to reflect a correction in the spelling of Complainants’ last name which should be EUELL and not Evell.

2. Respondent, as subcontractor for a general contractor who built Complainants’ new home, provided and installed kitchen countertops, together with abutting backsplash material against the adjacent walls.

3. The evidence revealed that portions of the backsplash have become loose and have separated from the wall surface at several locations. The most prominent of these locations were to the immediate right of the range and also directly behind the sink where both the backsplash material and the adjacent countertop materials have also sustained significant water damage.

4. It is found and determined that the damage to the materials was proximately attributable to a degree of sinking and separation of the countertop from the backsplash at the rear of the sink which, it turn, was shown to be traceable to the weight of the selected sink and the support design of the countertop and cabinetry. Any conclusion that such damage was the result of excess water from operating the dishwasher or disposer by the homeowner-occupants would be impermissibly based upon mere conjecture.

5. Although a contractor is usually not instructed as to the manner or extent of accomplishing needed repairs, in this case Respondent’s owner and qualifying party himself has expressly and repeatedly stated that any caulking or sealing attempt would not be successful other than providing a temporary fixing, and that replacement of the affected countertop section and backsplash unit at the sink location is the only appropriate method of performing an effective repair. Consequently, the evidence supports a determination that the countertop and backsplash in which the sink is mounted must be properly removed and replaced by Respondent. However, any additional loosened portions of the backsplash which abut a different countertop section need not be replaced but may be repaired by appropriate caulking and securing to the adjacent wall surfaces.

6. The raised breakfast bar was shown to be excessively out of level and requires appropriate remedial work. The evidence failed to indicate that this problem was attributable to any abnormal or unanticipated use or abuse of the bar top on the part of the occupants of the home. 7. The above described deficiencies reflect adversely upon Respondent’s workmanship and the failure to timely accomplish appropriate remedial work is further found to constitute a wrongful act to the detriment of Complainants within the meaning of another charged subsection of the State’s contracting laws.

8. Complainants as homeowners may properly look to either or both the general contractor and/or the subcontractor for the correction of the above described deficiencies. A specialty contractor such as Respondent is rarely, if ever, justified in performing work falling within its specialty field which it knows or reasonably should know may tend to produce poor results regardless of any insistence or directions from a customer or even from a general contractor.

9. There was an indication from the testimony that the project’s general contractor elected to disregard specific advance advice from Respondent as its specialty subcontractor on this project, which appeared from the testimony to have been the case with respect to not authorizing corbels under the raised breakfast bar and with respect to not authorizing a different type of sink or a different design of the sink cabinetry. If this be true, then applicable principles of estoppel may well have operated to equitably preclude the general contractor from successfully pursuing any administrative disciplinary complaint before the Registrar if such general contractor had been the named Complainant instead of the homeowners. 10. A rapidly deteriorating relationship between the above named parties had developed and still continues, making the accomplishment of further jobsite work at best difficult, if not impossible. By way of fortifying this observation, both principals abruptly departed from the hearing room prior to its conclusion, and Co-Complainant husband, Kenneth Euell, refused to return to complete his rebuttal presentation or to give any closing summary, thereby voluntarily absenting himself from the balance of the hearing presentations. For these reasons, any corrective work conditions to be included in the Order entered in this matter should include a further condition that neither Co-Complainant, Kenneth Euell, nor Respondent’s owner and qualifying party, Thomas Lee Carney, should be personally present on the jobsite during the actual performance of such corrective work.

11. A written directive was issued to Respondent by the Registrar’s assigned Inspector following a jobsite visit specifically relating to this complaint. It was not disputed that the items of work enumerated in such directive were not accomplished. However, Respondent did make efforts to promptly contact Complainant for authorization and treated a questionably prudent but not wholly unreasonable communicated request from Complainant that Respondent first submit a written general description of the intended remedial work as well as a firm date for performance as a denial of access, thereby purportedly excusing any repair duties and waiving any entitlement to any corrective work. While no denial of access is found to have existed, the good faith belief by Respondent that the directive no longer was applicable is determined to warrant a finding that Respondent has not violated the spirit and intent of the charged code provision relating to non-compliance with agency directives.

12. Notice is taken of the Registrar’s license records which reveal that Respondent has compiled an above-average prior record as a contractor in this State. Such good record should prompt the Registrar to impose no additional disciplinary penalty against Respondent’s license if the corrective work conditions are timely and properly complied with.

CONCLUSIONS OF LAW

1. The totality of the evidence of record sufficiently supported findings that Respondent has violated the provisions of A.R.S.§32-1154A(7) and (3); namely, Rule R4-9-108. However, no violation by Respondent of the spirit and intent of A.R.S.§32- 1154A(23) was sufficiently proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that Respondent’s Class C-30 license be temporarily and actively suspended until the Registrar receives proof that Respondent has properly accomplished the removal and replacement of the sink section of the kitchen countertop and backsplash, has appropriately repaired any loose backsplash at other locations, and has rectified the unlevel breakfast bar feature; provided however, that neither Mr. Thomas Carney nor Mr. Kenneth Euell are to be personally present during the actual performance of such corrective work. In this connection, no advance written communication from Respondent is required but Complainant should be notified, even verbally, as to the planned time when access to the home is needed, which should be during normal workdays and working hours.

It is further recommended that if Respondent files proof with the Registrar that the aforementioned corrective work has been accomplished in a proper, workmanlike manner on or before this Order’s effective date, or if Respondent is unable to accomplish such corrective work because of Complainant's unwillingness to accept the same or his refusal to grant Respondent or its representatives reasonable and timely access to the premises, then no license suspension shall be imposed, and the entire Citation and Complaint in Case Number H97-0207 shall be closed.

Dated: February 9, 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