ALJDEC

98F-T0727-ROC · Registrar of Contractors · 1998-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|AGNES M. SPRUNGER, |(| | | |(|Case No.: T98-0727 | |Complainant, |(| | | |(|Docket No.: 98F-T0727-ROC | |vs. |(| | | |(| | |License No. 055827, Class B of |(|Recommended | |ASSOCIATE HOMES, INC. (CORP), |(|Decision and Order | | |(| | |Respondent. |(| | | |(| | | |(| |

HEARING: November 9th, 1998; 9:00 a.m.

Appearances: The Complainant, Ms. Agnes M. Sprunger, appeared in her own behalf. The Respondent, Associate Homes, Inc., appeared through its President and Qualifying Party, Mr. Bruce Benninghoff.

Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing on Monday, November 9th, 1998, at 9:00 a.m. The Complainant, Ms. Agnes M. Sprunger, appeared in her own behalf. The Respondent, Associate Homes, Inc., appeared through its President and Qualifying Party, Mr. Bruce Benninghoff. Testimony and other evidence was made of record and, based on the record taken as whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein is, and at all times material hereto was, a licensed contractor in the State of Arizona, holding Class B License Number 055827.

2. The Complainant herein contracted with the Respondent for the construction of her new home in Green Valley, Arizona, on March 20th, 1997, with addendum on April 2nd, 1997, at the price of $173,810.

3. Complainant had many problems with the construction of her home, and a punch list of items to be corrected was written after closing on the house.

4. Still dissatisfied with the correction of the defects to her house, the Complainant filed her complaint with the Registrar of Contractors on April 9th, 1998, alleging that Respondent had abandoned the job as well as several items she wanted the Respondent to be made to correct.

5. Registrar of Contractors’ Inspector/Investigator Mr. James B. Morris conducted a job-site inspection of Complainant’s home on the morning of May 4th, 1998. Present at the inspection besides Mr. Morris were the Complainant and Mr. Benninghoff, President and Qualifying Party of the Respondent.

6. Following the inspection Mr. Morris issued a Corrective Work Order to the Respondent dated May 8th, 1998. That Order listed 58 items to be corrected.

7. Following that, Complainant produced additional lists of items of complaint dated June 1st, 5th, and 8th, 1998.

8. Mr. Morris conducted a second job-site inspection on June 19th, 1998, and issued a second Corrective Work Order dated June 25th, 1998. That Order listed 12 additional items to be corrected.

9. Much of the work listed on the Corrective Work Orders had not been performed by Respondent as of July 15th, 1998, and it was then that Complainant requested in writing an administrative hearing. Citation and Complaint issued from the Registrar’s Office on August 19th, 1998.

10. Complainant filed another letter listing additional items of Complaint with the Registrar on September 2nd, 1998. The Registrar issued a Notice of Amendment to Citation and Complaint, adding these items to the Citation and Complaint, and deeming the Respondent to have denied same, on October 1st, 1998.

11. Mr. Morris conducted a pre-hearing job-site inspection (including the items of the list of September 2nd, 1998) on November 5th, 1998, and this hearing was held November 9th, 1998.

12. Of the scores of items of Complainant’s complaint, a great many had been corrected by the time of hearing, as proved not only by the testimony of Mr. Morris, but by the evidence of the parties as well. Also, between the time of Mr. Morris’s pre-hearing inspection on November 5th, 1998, and the hearing on November 9th, 1998, the evidence shows that Respondent had performed additional corrective work, but the precise nature and extent of that work was not made clear to the record, even by Respondent.

13. The preponderance of evidence shows that the following items (many of which are minor items) still need to be corrected by Respondent. As to the May 8th, 1998 Corrective Work Order: FRONT: 1. Molding at garage door needs painting; 4. Complete painting at area of site drainage work; 8. Rusted areas at front gate need to be painted by appropriate means; NORTH SIDE: 15. Touch-up rusted area with paint on rear gate by appropriate means; WEST SIDE: 18. Finish cleaning off paint from electrical outlet cover; GREAT ROOM: 23. Correct screen on patio door including tear in the fabric, add latch and latch keeper; HALL: 33. Glue the carpet pile loop at cut wall by the south side; GUEST BEDROOM: 37. Clean the ring off the toilet seat cover. As to the June 25th, 1998, Corrective Work Order: 5. Complete the paint touch-up on the patio walls and exterior of house by appropriate means, paint to match in color and type; 7. Correct scratches on paint (bronze color finish) on window by appropriate means; 11. Paint west side area of sink under cabinet.

14. All items on the September 2nd, 1998 addendum had been corrected, except that Complainant was forced to spend $30.00 to a locksmith to come and let her into her house due to the lock installed by Respondent not working properly. Also, in correcting the roof area, Respondent has left some white spots on the roof which need to be removed.

15. Dispute exists between the parties which could not be resolved in Mr. Morris’s mind relative to Complainant’s complaint of the mailbox. It appears that the Complainant’s Homeowners’ Association is willing to correct this problem of painting the mailbox stand by appropriate means, but it also appears that Respondent should correct the problem. Respondent should paint the mailbox stand by appropriate means.

16. Complainant complains that there is a construction defect in her house which is causing water to be emitted which leaves a green stain on her sinks and utensils. Mr. Morris concluded this was a water problem, not a construction defect. Complainant produced evidence that two other neighbors had experienced no such problem. There is some evidence on both sides of this issue, but insufficient competent evidence to find that the green stains are a result of construction defects of the Respondent.

17. Complainant complains that Respondent failed to install a drip irrigation system for her. However, Complainant produced no contractual evidence of where the parties had ever contracted for Complainant to have a drip irrigation system. Moreover, the property’s landscaping was left in its natural desert state, with mature desert vegetation needing no irrigation. Complainant produced Respondent’s list titled “Luxury Items.” But that list was not shown to be more than a list of items a homeowner could purchase with any house, not that Complainant purchased a drip system.

18. Complainant also complains of the need for paint on her patio wall. When it is wet, she contends, it looks bad. However, the evidence is insufficient to find a defect in the patio wall. And the testimony of both Mr. Morris and Respondent was that the Complainant’s patio wall showing some color variation when wet is not a defect.

19. Complainant complains of a gap between the bottom of her garage door and the concrete drive. She contends that the driveway slopes from one side to the other and should be repoured. However, Complainant testified that the door does touch all the way across.

20. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein is charged with possible violations of A.R.S. §32-1154.A.1., 7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).

3. The evidence of record supports the conclusions here reached that Respondent did violate A.R.S. §32-1154.A.7., 23., and 3., as set forth in the Citation and Complaint, but did not violate subsection 1.

Recommended Order

Wherefore, it is hereby recommended that Respondent’s Class B License Number 055827 be suspended until such time as the items set forth in Findings of Fact #13, 14 and 15, are corrected to the satisfaction of the agency inspector, and has, by way of restitution, remitted or tendered $30.00 to Complainant, that amount being the cost to her of hiring a locksmith to let her in her house due to the faulty lock mechanism installed by Respondent.

It is further recommended that if, on or before the effective date of this order, the Respondent has furnished proof to the Registrar of Contractors that it has performed the corrective work in a proper workmanlike manner, and provided the $30.00 as restitution, then no license suspension take place, and Citation T98-0727 shall be closed.

Dated this 10th day of November, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of November, 1998, to:

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

Transmitted by:

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