ALJDEC

98F-T0127-ROC · Registrar of Contractors · 1998-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |§| | |HAROLD TOWERY, |§|CASE NO.: T97-1073 | | |§| | |Complainant, |§|DOCKET NO.: 97F-T1073-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 057246, Class B of |§|DECISION AND ORDER | |PIERCE CONSTRUCTION, LTD (CORP.),|§| | | |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| | | |§|CASE NO.: T98-0127 | |HAROLD TOWERY, |§| | | |§|Docket No. 98F-T0127-ROC | |Complainant, |§| | | |§| | |-v- |§|RECOMMENDED | | |§|DECISION AND ORDER | |License No. 057246, Class B of |§| | |PIERCE CONSTRUCTION, LTD |§| | |(CORP.), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: December 7, 1997, at 8:30 a.m., and February 17, 1998, at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Ronald Lehman. ADMINISTRATIVE LAW JUDGE: M. Douglas

These matters came on for consolidated hearing on December 7, 1997, and on February 17, 1998. The Complainant appeared on his own behalf and the Respondent appeared through its attorney, Ronald Lehman. 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. Respondent is the holder of a Class B- License issued by the Registrar of Contractors.

2. These are residential matters where the Respondent constructed a new residence for the Complainant. There was no dispute that the residence was from one of the plans made available by the Respondent in a subdivision of like houses.

3. Before actually occupying the residence, the Complainant performed a walk-through inspection, which noted six deficiencies which the Respondent promptly corrected.

4. Shortly after the Complainant took possession of the residence, he began to experience repeated, sharp, personal confrontations throughout the neighborhood where the Respondent was still constructing new residences.

5. The Complainant then obtained a copy of the blueprints for his residence and found that the actual electrical and plumbing installations in his residences differed in several areas from the blueprints. In addition, the Complainant noted several alleged workmanship deficiencies.

6. The parties were unable to resolve any of their differences despite repeated efforts to do so.

7. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work and filed his first formal complaint, against the Respondent, with the Registrar of Contractors.

8. Pursuant to the filing of the first formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence.

9. Credible evidence established that the Respondent repeatedly offered to perform the directed corrective action but that the Complainant would not allow access to his residence unless the Respondent first signed a written agreement, prepared by the Complainant, which specified the method of repair and provided for late fees.

10. The Respondent refused to enter into a new agreement with the Complainant and, consequently, the Complainant denied access to the Respondent to perform the directed corrective work.

11. The assigned Agency Inspector found the Complainant’s actions to constitute a denial of access and on August 6, 1997, sent notice of his intent to close Complainant No. T97-1073.

12. The Complainant objected to the closing of the first complaint and on August 12, 1997, filed Complaint No. T98-0127 against the Respondent.

13. The assigned Agency Inspector then conducted a second on-site inspection and moved to close Complaint No. T98-0127 on the basis that no action was required by the Respondent.

14. The Complainant disagreed with the Inspector’s actions and requested formal hearings for both complaints.

15. Credible evidence, presented at hearing, established that the Complainant selected his house on the basis of the Respondent’s model home rather than the plans and specifications for the residence.

16. There was no dispute that the plans and specifications for the Complainant’s residence were generic plans used for the same type of residence through-out the Respondent’s subdivision.

17. There was no dispute that the plans were neither stamped nor sealed by an architect or an engineer.

18. Credible evidence established that the building authority for Pima County considers the plumbing and electrical layouts set forth in non- sealed and non-stamped plans to be for schematic purposes only and only inspects the residences constructed under such plans for proper code compliance.

19. The Uniform Building Code, as adopted by Pima County, provides, in part as follows: “…approved plans shall not be changed, modified, or altered without authorization from the building official…”.

20. Credible evidence established that Pima County did inspect the Complainant’s residence and found all of the plumbing and electrical work to be in compliance with applicable code requirements and gave its authorization or the equivalence of authorization by approving the plumbing and electrical work as built by the Respondent.

21. Based upon the actions of the Pima County Building authority, it is found that the Respondent constructed the electrical and plumbing portions of the Complainant’s residence in substantial conformance with the Respondent’s generic plans and specifications for the residence.

22. With respect to the enumerated items of the complaints, alleged to be sub-standard and deficient, the following items were demonstrated to constitute unacceptable workmanship attributable to, and remaining uncorrected by, the Respondent:

w) There is a penetration of an hour fire rate wall with A.B.S. plastic pipe. This is in violation of applicable building and fire codes. The Respondent shall properly correct the penetration so as to eliminate the code violation.

x) There is no toe down under the concrete front porch slab for the Complainant’s residence. The Respondent shall properly install a toe down.

y) The kitchen and laundry sinks were not including in the hot water circulating system. Credible evidence presented at hearing established that both areas should have been included in the circulating system. The Respondent shall properly connect the two areas to the circulating system.

26. The other items raised at hearing were either insufficiently proven to be workmanship deficiencies or shown to have been adequately corrected by the Respondent.

27. Both parties demonstrated an ongoing inability to effectively communicate without an obviously high degree of personal friction. However, it is found that the parties are fully capable of scheduling and performing the above required corrective action.

28. Complaining parties, who elect to utilize the Registrar of Contractors, are not always entitled to the performance of corrective action nor are licensed contractors necessarily entitled to perform corrective work instead of otherwise appropriate disciplinary actions.

29. The Registrar of Contractors does not specify methods of repair or supervise corrective action nor are Complainants given the right to specify methods of repair or supervise corrective action. Instead, in selecting the manner and extent of performing any corrective work the licensed contractor is at its peril to achieve results which meet all applicable code and industry standards.

30. It is found that the Respondent should be given an opportunity to properly tender the corrective action set forth above and that the Complainant should be given one final opportunity to accept a proper tender of corrective action by the Respondent. Any unreasonable denial of access should be treated as the substantial equivalence of compliance.

31. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the previsions of A.R.S. (32-1154 (A) (3); namely, Rule R4-9-108.

RECOMMENDED ORDERs

1. In view of the foregoing, it is recommended that the Respondent Class B- License shall be temporarily suspended until the Registrar of Contractors receives proof that the Respondent has properly performed, or properly tendered, the corrective action set forth above in Finding of Fact Nos. 20(a) through 20(c), inclusive.

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No.T97-1073 shall be closed.

2. In view of the totality of the foregoing, it is recommended that Case No. T98-0127, together with the complaint upon which it is based, be dismissed.

Dated this 2nd day of March, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of March, 1998 to:

Michael Goldwater, Director Registrar of Contractors Attn: Joyce Armijo 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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