ALJDEC

98F-M0118-ROC · Registrar of Contractors · 1998-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 1998; 9:00 A.M.; Phoenix, Arizona APPEARANCES: Complainant: Darin A. Jacobs Respondent: Trent L. Earlie, Manager, Earlie Homes ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Director of the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT PROCEDURAL HISTORY AND FACTS 1. Respondent Dan Lee Earlie (“Earlie”) holds License No. 095224, Class B, issued by the Registrar on October 27, 1992. 2. On July 28, 1997, and on January 22, 1998, Mr. Darin A. Jacobs filed complaints with the Registrar alleging that Earlie had failed to correct certain items in a new house, located in Chandler, Arizona, Earlie had built for Mr. Jacobs. 3. On September 3, 1997, Mr. Ronald C. Lamp, the Registrar’s inspector assigned to this case, following a jobsite inspection, issued a Corrective Work Order on the first complaint directing Earlie to take corrective actions on seven items.

4. On October 29, 1997, the Registrar issued to Earlie Citation and Complaint No. M98-0118 alleging violations of Arizona Revised Statutes (“A.R.S.”) §§ 32-1154(A)(3), namely, Rule R4-9-108, Ariz. Admin. Code, 32- 1154(A)(7), 32-1154(A)7; 32-1154(A)18); and 32-1154(A)(23). 5. On December 2, 1997, the Registrar issued a Notice of Hearing. Under the authority of A.R.S. § 41-1092.02, the hearing was assigned to the Office of Administrative Hearings. 6. On January 29, 1998, the Registrar issued a notice adding by amendment to the hearing the items raised in the complaint Mr. Jacobs filed on January 28, 1998. 7. On February 19, 1998, a hearing lasting almost two hours was held. Both parties presented testimony and Earlie presented documentary evidence. THE CORRECTIVE ITEMS 8. On February 17, 1998, Mr. Lamp made a prehearing inspection of Mr. Jacobs’ house. 9. The following items require corrective work (Items No. 1, 2 ,3 , 4 and 5 follow the numerical sequence contained in the September 3, 1997, Corrective Work Order) and additional items contained in the January 22, 1998, complaint (Items No. 6 and 7): (1). Two spots of finished textured drywall in the Master Bath need touch-up paint. These two spots are approximately 2’ x 1’ and 1’ x 1’. The drywall texture is acceptable to Mr. Jacobs. The only omission is the unfinished touch-up paint. Mr. Jacobs used the pint of touch-up paint Earlie gives to every new homeowner. (2). The corners of two walls, one in the hallway and one in the Master Bedroom doorway, are bowed. According to both Mr. Lamp and Mr. Anthony Bernardino, the drywaller, these unleveled corners can be corrected by applying drywall and trying to level the wall. Mr. Bernardino did this once last Fall, but according to Mr. Jacobs, the bowing effect prevents the application of a molding he wishes to install. (3). The ventilation in the front bedroom (designated Bedroom No. 4 in the Corrective Work Order) remains in issue. According to Mr. Jacobs, the temperature in this bedroom is either too hot or too cold, depending on the season. Mr. Jacobs testified that the temperature in the room is as much as 15º different from adjoining rooms. On the other hand, Earlie had its air conditioning and heating subcontractor (Chas Roberts Air Conditioning, Inc.) perform two Air Balances and additional service work on May 23, 1997, and on August 11, 1997. This subcontractor installed elbows to the registers to direct more air into the front bedroom (May 23, 1997) and removed the baffles for this area and installed a scoop inside the 10” flex run for the room (August 11, 1997). On October 29, 1997, Earlie had another subcontractor pull the insulation away from bird blocks. On May 21, 1997, the air conditioning and heating subcontractor reported that the air in the front bedroom “seemed adequate, but the Homeowner was not satisfied.” See, Respondent’s Exhibit No. 4. The first Air Balance was scheduled. On May 23, 1997, the subcontractor reported after making its adjustments, “Air flow seemed good now.” See, Respondent’s Exhibit No. 4. On August 11, 1997, the subcontractor reported: “Found bedroom temp 2 degrees warmer than thermostat. Builder needs to cut out interior roof for ventilation.” See, Respondent’s Exhibit No. 4. In his prehearing inspection, Mr. Lamp “felt” the room “colder” than the others but could not state by how many degrees. In the same models which Earlie is now building, Earlie is installing a larger vent in the front bedroom. A larger vent generally allows more air to enter the room. There is no evidence showing or establishing that Earlie deviated from the approved building plans when the air system was installed. (4). One joint in the fascia needs caulking. (5). The nail heads on two boards - a shingle molding and a fascia board - need to be painted. (6). A portion of the underside, not more than 1’ x 1’, on the west side of the rear patio needs to be repainted, as the paint in this spot is cracking and peeling. It is unknown what caused the cracking paint. Mr. Jacobs denied that anyone hoses the underside of the rear patio. (7). Two veneer panels (approximately 2’ x 3’ each), on the south side of the island kitchen show four scuff marks. The marks are about the size of a “fifty-cent piece” (Mr. Lamp), are both at the bottom and about thirty inches above the floor, and are visible from a standing distance of ten feet. Mr. Jacobs has tried to remove or clean the marks but without success. It is unknown how the marks were caused. A proper solution is to replace the two panels where the marks are found. 10. Earlie has sent various trades workmen to complete the items in Mr. Lamp’s Corrective Work Order. EARLIE’S PRIOR DISCIPLINARY RECORD 11. The computerized public records of the Registrar show that during the past two years thirty confirmed complaints have been filed against Earlie. CONCLUSIONS OF LAW A.R.S. § 32-1154 AND REGISTRAR’S RULE R4-9-108 The issues are did Earlie violate A.R.S. §§ 32-1154(A)(3), namely, Rule R4-9-108, Ariz. Admin. Code; 32-1154(A)(7); 32-1154(A)(18); and 32- 1154(A)(23)? A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: *** 3. Violation of any rule adopted by the registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. *** 18. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status. *** 23. Failure to take appropriate 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.”

Registrar’s Rule R4-9-108(A), Ariz. Admin. Code, states “All work shall be done in workmanlike manner.” 1. The evidence establishes Earlie violated A.R.S. § 32-1154(A)(3), namely, the Registrar’s Rule R4-9-108, Ariz. Admin. Code. The items listed in the Corrective Work Order which have not been completed and the new items presented in the January 22, 1998, complaint are construction items not completed “in a good workmanlike manner and in a manner befitting a skilled workman.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), Ariz. Admin. Code. Earlie tried to correct all of the items listed in the Corrective Work Order and completed most of the deficient items. Communications between these parties could be better. There were problems at Mr. Jacobs’ house, and while Earlie corrected many, the list of items either changed or grew. Earlie is prepared and willing to undertake the remaining corrective actions. By now, these parties should be able to undertake the needed work. Past frustrations must be put aside, with the objective of closing this matter to everyone’s satisfaction. 2. The Registrar has adopted minimum workmanship standards for licensed contractors for air conditioning and heating installations. See, Minimum Workmanship Standards for Licensed Contractors, Air Conditioning and Heating, page 5, June 1994. For inadequate heat: “Heating system should be capable of producing an inside temperature of 70º as measured in center of room at 5’ height under local outdoor winter design conditions as specified in ASHRAE Handbook (see J Manual tests as specified in ARI standards).” For inadequate cooling: “Unit should cool structure 30º (32º in Scottsdale) lower than outside air temperature when measured in center of room at 5’ height.” 3. The evidence does not establish Earlie violated A.R.S. § 32- 1154(A)(7). A.R.S. § 32-1154(A)(7) requires a showing that a complainant has been “substantially injured” as a result of a licensed contractor’s “wrongful” act. The evidence does not establish that Earlie committed “wrongful” acts in its work. 4. The evidence does not establish Earlie violated A.R.S. § 32- 1154(A)(18). No evidence was introduced supporting such a claim. It appears that this citation might have been a clerical error. 5. The evidence does not establish Earlie violated A.R.S. § 32- 1154(A)(23). Earlie sought to comply with the Corrective Work Order and undertook and completed most corrective actions. The fair weight of the evidence does not support a conclusion that Earlie violated A.R.S. § 32- 1154(A)(23). 6. Earlie’s disciplinary record during the past two years, may be considered in aggravation when formulating and submitting an appropriate recommended disposition of this matter. See, Rule R4-9-117, Ariz. Admin. Code. RECOMMENDED ORDER It is recommended that: 1. Earlie be given the opportunity to complete the required corrective actions. 2. The Registrar suspend Earlie’s License No. 095224, Class B, unless and until the Registrar receives, on or before thirty days after the effective date of the Registrar’s order of suspension, written notification that Earlie has completed, or has caused to complete through other licensed contractors, in good workmanlike manner, the following corrective items: (1). Paint the two spots of finished textured drywall in the Master Bath, matching color as closely as possible. (2). Replace Mr. Jacobs’ pint of touch-up paint. (3). Correct the bowing on the corners of the two walls in the hallway and in the Master Bedroom doorway. Drywall material with an appropriate adhesive should be used. (4). Conduct an Air Balance of the front bedroom and make proper repairs or adjustments to meet the temperature conditions specified by the Registrar’s Minimum Workmanship Standards for Licensed Contractors for Air Conditioning and Heating described in Conclusion of Law No. 2. If the standards are met, no further action shall be required. (5). Prepare and caulk the one joint in the fascia which needs caulking. (6). Paint the nail heads on the shingle molding and the fascia board which need to be painted, matching color as closely as possible. (7). Paint the portion of the underside on the west side of the rear patio where the paint is deteriorating, matching color as closely as possible. (8). Replace the two veneer panels on the south side of the island kitchen which show the four scuff marks. The replacement veneer panels should reasonably match the existing unit considering its age, wear and tear. 3. If these corrective actions are timely completed, the Registrar should close Citation and Complaint No. M98-0118. SUBMITTED this 23rd day of February, 1998.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order was mailed on February 23, 1998, for distribution to the parties, to:

Michael Goldwater Director Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007-2940

George A. Schade, Jr. -----------------------

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