ALJDEC

98F-H0025-ROC · Registrar of Contractors · 1998-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 1998. APPEARANCES: Complainants’ appeared personally. Respondent appeared through it president and qualifying party, K.C. Orr. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusion of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent was the general contractor for the construction of Complainants’ home in Kingman, Arizona. 2. On July 25, 1997, Complainants filed a complaint against Respondent with the Registrar of Contractors. 3. In response to Complainant’s filed complaint, the Registrar of Contractors’ assigned agency inspector performed a jobsite inspection of Complainants’ residence on August 12, 1997. The inspector went over each complaint item contained in three handwritten pages submitted by Complainants with their complaint. 4. As a result of the inspector’s jobsite inspection, a corrective work order was issued by the Registrar of Contractors directing Respondent to timely perform the following remedial work: touch up paint as needed to the interior and exterior of Complainants’ home; properly repair stucco as needed; reroute plumbing lines at water heater to comply with applicable codes; check water pressure at kitchen sink and repair as needed; repair and adjust dining room window; repair and adjust window screens to function properly; and return original plans to Complainants. 5. On or about October 9, 1997, the Registrar of Contractors received an additional three pages of complaint items from the Complainants. Those additional complaint items were received by the Registrar prior to the issuance of the citation in this matter. 6. As a result of the Registrar’s corrective work order, Respondent caused its painting subcontractor to appear at Complainants’ residence to perform remedial repairs. While it is found that the painting subcontractor substantially complied with the Registrar’s directive regarding remedial painting, it is determined that the painting subcontractor failed to properly repair the patio ceiling, which has areas of visible staining. Respondent is deemed responsible for performing, or causing its painting subcontractor to perform, all necessary paint repairs so that the patio ceiling meets minimum workmanship standards. 7. Respondent is found to have caused proper remedial repairs to the excessive stucco cracks in the exterior walls of the house. However, the application of color coating during those remedial repairs does not meet minimum workmanship standards, especially, but not limited to, the right side of the house. Respondent is deemed responsible for providing that the color coating finish of the exterior stucco walls meet minimum workmanship standards. 8. The plumbing at the water heater is found to have passed all required inspections and meets all applicable codes. 9. Complainants’ kitchen faucet is a water restrictive faucet. Although Complainants are dissatisfied with the kitchen faucet water pressure, there is insufficient evidence to establish that the installed water faucet is defective or that it does not meet plans and specifications.

10. It is determined that Respondent failed to comply with the Registrar’s written directive to properly repair Complainants’ dining room window. That window leaks water and dust into the dining room. It is also difficult to open and close the window. Respondent is responsible for performing all necessary repairs so that the installation and performance of the dining room window meets minimum workmanship standards. Respondent is further found to be responsible for repairing any interior damage resulting from the substandard installation of the dining room window. 11. Window screens installed in Complainants’ home do not function properly. The screens are missing springs which would cause the screens to sit properly in the window frames. Respondent is found not to have substantially complied with the Registrar’s written directive to repair and adjust all window screens to function properly. Respondent is responsible for supplying and installing window screens with springs. 12. Respondent did not timely comply with the Registrar’s directive to return the original plans to Complainants. Respondent did return the plans during the instant hearing. 13. While Respondent did undertake to contact its subcontractors to perform the enumerated corrective work at its own additional expense, it is determined that Respondent failed to substantially comply with the Registrar’s written directive. It is noteworthy that Respondent apparently did not inspect the remedial repairs itself but, instead, relied upon assurances from its subcontractors that the work had been properly performed. 14. The height of Complainants’ kitchen bar countertop is 46”. The installation of the kitchen bar countertop is found to have been installed as per plans and specifications which had been approved by Complainants. 15. The plans for the refrigerator location in the kitchen show a 36” space. The plans were approved by Complainants. While Complainants have a refrigerator which measures almost 36”, it is determined that Respondent properly performed the construction necessary to provide for the refrigerator space as specified in the approved plans. 16. The approved plans provide for a “cabinet fluorescent lite (sic) w/switch owner to locate” in the kitchen. Respondent installed a single fluorescent light which has a switch on the unit itself versus utilizing a separate, wall mounted switch. The plans do not otherwise specify the type of lighting or that a wall mounted switch is required. Respondent is found to have installed the cabinet fluorescent light with switch as per plans. 17. There is an area of the floor located in front of the kitchen bar where four floor tiles meet. That location has tile with lippage which is a potential trip hazard. Respondent is deemed responsible for performing all necessary repairs to that area to remove the trip hazard. 18. The design of Complainants’ installed kitchen cabinets meet approved plan specifications. 19. The linen cabinet is a modular construction with pre-drilled holes. Complainants complain that the interior of the linen cabinet only contains a single shelf versus multiple shelving. There is credible evidence that most linen cabinets commonly have shelving with 12” spacing within the cabinets. It is determined that Respondent should be required to install shelving with 12” spacing in the linen cabinet. 20. Respondent’s above described deficient workmanship and failure to comply with the Registrar’s written directive are deemed wrongful acts which have substantially injured Complainant. 21. Any allegation raised by Complainants in their complaint to the Registrar prior to the issuance of the citation in this matter, or raised by Complainants subsequent to the issuance of the citation which is not specifically mentioned above is deemed either to meet minimum workmanship standards, to comply with approved plans and specifications, to be a monetary dispute between the parties which should properly be resolved in a civil court of competent jurisdiction, or to be outside the scope of the hearing which is governed by the allegations submitted to the Registrar by Complainants prior to the issuance of the citation in this matter. 22. The official records of the Registrar of Contractors indicate that Respondent has had only one other complaint filed against its license. Respondent resolved that complaint through compliance. Respondent’s record should be a matter in mitigation when the Registrar contemplates disciplinary penalties against Respondent.

CONCLUSION OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. 32-1154 (A) (7), (23) and (3); namely Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class B license be suspended until the Registrar of Contractors receives written proof that the items set forth in Findings No. 6, 7, 10, 11, 17 and 19 above have been appropriately rectified by Respondent. It is further recommended that if Respondent properly accomplishes the above-described remedial repairs on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place and the citation and complaint in this matter shall be closed.

It is further recommended, in addition to the above-provided penalty, if any, that Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by Respondent to pay the entire amount of that 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 Class B contractor license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101 (A) (3) unless payment of any outstanding prior civil penalty is tendered. Done this day, June 18, 1998.

_______________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

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