ALJDEC

98F-1865-ROC · Registrar of Contractors · 1998-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 1998 APPEARANCES: Christopher Smith and Vanessa Bertini, Complainants, in their own behalf Frank and Mike Warren on behalf of the corporate Respondent

ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact 1. In May, 1996, the parties entered a contract whereby the Respondent would build the Complainant’s home in Scottsdale, Arizona. The contract included by reference, applicable covenants codes and restrictions (CCR’s) for Pinnacle Peak Vistas III and the Architectural Review Committee requirements. The Respondent was fully paid under the contract. 2. In February, 1998, the Complainants filed their Complaint with the Registrar of Contractors (Registrar), listing 183 items which could constitute possible violations. 3. On February 13, 1998, Inspector Dick North (North), of the Registrar’s office performed an inspection and based on the results of the inspection, issued a Corrective Work Order (CWO). The responsibility for some items could not be determined by North because they involved the CCR’s which North did not have, or were not on the plans. Other items were duplications, within minimum standards or homeowner responsibility. Of the Complainant’s list, North concluded that the Respondent was to correct approximately 160 items. North performed a pre-hearing inspection on June 2, 1998. 4. The Respondent did some work and the Complainants had some repairs done. The vast majority of the repairs remain to be done. 5. Prior to the presentation of evidence, the parties stipulated to a majority of items which require corrective action. The list of items submitted by the Complainant as part of their Complaint which was filed with the Registrar, and the CWO issued by North are attached to and made a part of this Recommended Order. 6. The numbers on the Complainant’s list and the CWO should refer to the same items. Specific items which are stipulated are 1-7, 9-11, 13, 14, 16, 17, 20, 22-27, 31, 36, 37, 39-41, 43, 45-50, 52-57, 61-63, 66-76, 79- 82, 84, 85, 87, 89-106, 108-110, 112, 113-116, 118, 121-124, 126, 128- 131, 133-137, 139-142, 143-148, 151-155, 157-160,162, 163, 165-167, 169- 172, and 175-178. Most of these items require the corrective work listed in the CWO. Some of the above numbered items are listed in the CWO as having been repaired by others and in such case no corrective work is required. 7. The parties also stipulated to address structural concerns by the Respondent being responsible for obtaining a structural engineer to inspect and assess items 15, 18, 19 and 179. The Respondent is responsible for any corrections required as a consequence of the inspection. 8. The Complainants agreed to withdraw items 51, 59, 71, 77, 83, 117, 119, 149, 164, 168, 180-183. 9. The parties stipulated to the specific corrections which the Respondent is to do for item 33, (paint exposed particle board on inside of enclosure); item 35, (frame and plaster midsection between windows inside and out); and 36, (also fix fracture). 10. The issues which are contested are: K. Item 8, exterior rough sawed wood beams which support joists, parapet and roof overhang are bowed. The beams are six by ten inches and up to 15 to twenty feet long. The deflection is about an inch. North testified he considered the bowing excessive but could not determine if it presented any structural problems. This item is appropriate for review by the structural engineer as part of any inspection and assessment which was stipulated to by the parties and shall be the responsibility of the Respondent L. Item 15, a fireplace in the great room shows excessive leaching and cracking of the chimney. This is the responsibility of the Respondent. Saltillo tile which was cracking near the fireplace in the great room has been repaired by the Complainants and no further corrective action is required at present. M. Item 18, corbels which are a part of the exterior beam and support system, are twisting and no longer squared at 90 degrees. North considered this excessive from an aesthetic point of view but could not determine if there was a structural issue. This should be addressed as part of the beam inspection in 10 A above and part of the Respondent’s responsibility . N. Item 19, the beams pulling away at the southeast corner of the front porch should be inspected for structural integrity as part of the inspection referenced in 10 A and C above. O. Item 29, the PVC drain from the evaporative cooler will be rerouted by the Respondent to a more suitable area. P. Item 30, parapet walls on the roof allegedly do not meet CCR’s. It is not established that the parapets are required to be any specific height under the CCR’s. The height of the parapet wall varies but much, if not all of it, is under 16 inches which is the minimum height required by the Architectural Committee Rules No. 2.6. The contact between the parties specifies that the; “ Builder is responsible for building home in conformance with all applicable government and Architectural Rule Committee requirements”.

Unless the requirement has been waived by the neighborhood association, the Respondent is responsible for ensuring the parapets are in compliance under the contract and architectural rules.

G. Item 32, solar panels and the evaporative cooler are on the roof on the roof. CCR No. 7 and the Architectural Rule No. 2.6 provide that except for roof mounted solar devices permitted under A.R.S. §33-439, no other appliances are permitted. Architectural Rule No. 2.26 requires above ground maintenance and service facilities to be screened from view. The neighborhood association will allow the Complainant to keep the cooler as long as it is screened from view. However, the screening now keeps the solar cells from receiving optimal light. The solar panel should be moved to the parapet wall at the northeast corner of the roof in order to obtain optimal light. In conjunction with the agreement to allow screening of the cooler, the solar panel should also be screened. Architectural Rule No. 2.26 is not categorical on this issue but can be so interpreted. H. Item 34, a propane tank is above ground, not screened and not hooked up. The hole for the tank has been partially dug. This is in contravention of Architectural Rule 2.27 which requires fuel tanks to be shielded from view or underground. I. Item 44, the fireplace in the great room does not draw properly. North was unable to explain the reason for the problem. North testified that it was possible that chimney outlet was too small for the fireplace. The evidence did not establish if this was a design or construction problem. It is unknown who provided the plans for the design of the home. An open flue is required to remain open because of a gas line is installed even though not attached. In view of the evidence it cannot be concluded that the Respondent is responsible for the smoke problems with the fireplace. J. Item 86, the sponge painting of the playroom was done by the Complainants. The Respondent then repaired drywall after making corrections on a doorbell, and varnished door frames. This resulted in areas which had been sponge painted being touched up. The evidence shows that sponge painting is not susceptible to touch up and the entire area must be repainted after the current paint and base is stripped. 11. The Complainants are being fined by the neighborhood association for violation of CCR’s.

Conclusions Of Law The Citation and Complaint alleges violation of A.R.S. §32-1154(A)(3) violation of any rule, A.A.C. R 4-9-108, workmanship, (A)(7), a wrongful or fraudulent act resulting in substantial injury, (23), failure to take appropriate corrective action.

1. The Respondent acknowledged it had been paid for the work and asserted that the failure to do much of the corrective work is due to difficulties in getting sub contractors who did the initial work, to do the corrective work. This does not constitute a defense to the poor workmanship under A.A.C. R4-9-108, A.R.S. §32-1154(A)(3) or the failure to take appropriate corrective action under A.R.S. §32-1154(A)(23), on the numerous items which remain to be corrected. The fact that the Respondent has been unable to get subcontractors to do corrective work does not relieve the Respondent of its responsibility to the Complainant. The nature and extent of the problems which are stipulated or have been proven require a conclusion that the Respondent’s failure to address these problems in a timely and substantive way, constitutes a violation of A.R.S. §32- 1154(A)(7), wrongful conduct. The substantial injury includes the fines accruing against the Complainants by the neighborhood association. 2. In view of the extensive nature of this complaint and the work required to be done sufficient time should be allowed for the Respondent to perform all necessary work. However, the Respondent should not anticipate extensions or otherwise delay commencing the corrective work.

Recommended Order In view of the foregoing it is recommended that commencing on the effective date of the Order entered in this matter that the Respondent’s Class B license shall be suspended until the Registrar of Contractors receives written proof that a structural engineer has inspected the Complainant’s home as to those items set forth in this Recommended Order, and submitted a copy of the results of the inspection to the Complainants; It is further recommended that if Respondent has obtained the inspection and a report by a structural engineer by the effective date of the Order entered in this matter, then the aforementioned suspension shall not take place; It is further recommended commencing thirty (30) days after 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 appropriate and effective remedial work as stipulated to between the parties in the Findings of Fact paragraphs six and nine and as found to be necessary in the Findings of Fact paragraph 10 of this Recommended Order; It is further recommended that if the Respondent accomplishes the stipulated and above described corrective work on or before thirty (30) days from the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place It is further recommended that commencing sixty (60) days from 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 appropriate and effective remedial work on any structural repairs required as a result of the inspection by a structural engineer; It is further recommended that if the Respondent accomplishes any required corrective work pursuant to the inspection of the structural engineer, on or before sixty (60) days from the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place; It is further recommended that if the Respondent timely accomplishes all of the requirements of the Order entered in this matter, then the instant Citation and Complaint upon which it is based shall be closed.

Done this day, June 10, 1998

______________________________________ Allen Reed 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