ALJDEC

97F-H0222-ROC · Registrar of Contractors · 1997-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The hearing in this above captioned matter was conducted by Administrative Law Judge Kay Abramsohn on October 21, 1997 in Kingman, Arizona. At the hearing in this matter, Complainant Ernest R. Lloyd appeared representing he and his wife, Marion P. Lloyd. Ron Linn appeared, representing Respondent. The hearing in this matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented at the hearing, and based upon review of the entire hearing record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent was the general contractor in the construction of a new residence for Complainant in 1994. 2. Soon after Complainant moved in, in June 1994, they noticed problems with the facia board, and it was repainted. It began peeling again very shortly thereafter. After consulting with both Respondent and the supplier, portions of the facia board were replaced and/or repaired in October 1995. The supplier paid for the repair and replacement. Complainant received verbal assurance that the facia board would have no further problems. However, the facia board began peeling and cracking again, and was included in the complaint in this matter. 3. During construction of the house, Complainant noticed a foundation crack and on discussion with Respondent, was assured it would be all right once covered. After covering the area with linoleum, there were problems with the seams of the covering, and then later with the floor not being level. Other complaints were filed and closed after some repairs were made. During the second or third repair of the linoleum, and the leveling of the floor, the crack in the concrete floor opened up. The repair at that time was to grind down the crack and fill with filler or sealer, and to cover again with the linoleum. The linoleum then began to show a bubble over the crack for the approximately nineteen (19) feet length of the crack. This item was included in this complaint. 4. The carpeting which abuts this linoleum area is set on an angle and, therefore, is cut on a bias at this edge. With the various repairs of the linoleum, this area of carpet which abuts the flooring was taken up and replaced down several times. At this time, the carpet has been placed back not in its original line, in attempts to replace it so that the fraying and tearing is not showing. However, the fraying and tearing of the carpet is evident. This item was included in this complaint. 5. On May 10, 1997, Complainant subsequently filed this complaint at the Registrar of Contractors (Registrar). 6. On July 1, 1997 the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §32-1154.A.7, A.23, and A.3, specifically Arizona Administrative Code (A.A.C.) R4-9-108. 7. Respondent’s July 8, 1997 response indicates several things. First, that Respondent had filed a complaint against the carpet subcontractor. Second, that it had replaced and repainted the facia board, and that the “checking” of the paint would be noticeable after these two years. Third, that the vinyl was already replaced three times, the bubble is hard to find, and he wants to lay another layer of vinyl over it to take care of the problem. Last, that the concrete crack was not open, but had been repaired, and he had filed complaints against the floor covering and the concrete company. 8. Complainant’s position is they believe that the concrete crack is not yet properly repaired, and they want that concrete crack taken care of before any vinyl is replaced. Complainant does not want the second layer of vinyl on top of the existing layer as a resolution of the problem. Complainant’s position is they want the carpet replaced, and if the same dye lot is not available, that the entire house of carpet should be replaced. Complainant’s position is that the facia board needs to be repaired again, and that their preference is replacement with another type of board which will not give them these peeling and cracking problems over and over again. 9. Respondent testified that he believed the concrete crack to have been properly repaired this last time, and that he wants to attempt to pull out the gas in the bubble and attempt to roll it flat before attempting any other repair. Respondent testified that the supplier has already replaced the facia, and this is not warranty work for the facia, but normal “checking.” Respondent indicated he had tried to get the carpeting taken care of. 10. Based on the testimony and evidence, it is determined that the concrete crack does not meet with standards of workmanship, and must be properly repaired. Additionally, the area of concrete under the carpet edge must be repaired, as it is crumbling from the various re-installations of the carpet. 11. Based on the testimony and evidence, it is determined that the vinyl covering “bubble” over the concrete crack does not meet with standards of workmanship, and must be replaced. This replacement shall take place after the repair of the concrete crack. 12. Based on the testimony and evidence, it is determined that the carpeting fraying and tearing after the various re-installations at that area, does not meet with standards of workmanship and must be replaced. This replacement shall take place after the repair of the concrete crack and underneath where the carpet will attach. 13. Based on the testimony and evidence, it is determined that the facia board is within the jurisdiction of the Registrar, as the last repair or replacement was in October 1995, and the complaint was filed in May 1997; this is within two years of the construction repair. Based on the testimony and evidence, the facia board does not meet with standards of workmanship, and must be repaired or replaced. As there has already been approximately 80% replacement of the facia, the Respondent shall properly repair the facia. However, Complainants may elect to have the facia replaced, with the Complainant and Respondent splitting the cost of any replacement of the facia, and with Respondent completing the appropriate installation and proper finishing. 14. Administrative Notice is taken of Registrar’s records on Respondent which reveal that Respondent has several closed complaints and several open complaints. APPLICABLE LAW A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar... .

CONCLUSIONS OF LAW 1. Based on the testimony and evidence, it is determined that Complainant has established violation, by Respondent, of A.R.S. §32- 1154.A.7, as to a wrongful, but not fraudulent act, and A.R.S. §32- 1154.A.3, failure to do all work in workmanlike manner. 2. There is no evidence that Respondent failed to take corrective action, as there is no Corrective Work Order in this matter. Therefore, it has not been established that there was any violation of A.R.S. §32- 1154.A.23. 3. The other complaints filed by Respondent in matters concerning this same project are not before this tribunal in this matter, and may not be addressed herein. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended commencing on the effective date of this ORDER, that the Respondent’s Class B license be actively suspended until the Registrar has received written proof that Respondent has completed the above determined repairs. 2. It is further recommended that if Respondent completes those Ordered repairs on or before the effective date of the ORDER entered in this matter, then the above license suspension shall not take place. RECOMMENDED and DATED this day, November 12, 1997.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of November, 1997 to:

Michael P. Goldwater, Director Registrar of Contractors Attn: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By __________________________ ----------------------- [1] Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827