ALJDEC

99F-0278-ROC · Registrar of Contractors · 1999-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 1999 and March 5, 1999

APPEARANCES: R. W. Hill, Jr. appeared on his own behalf; Respondent was represented by its President and Qualifying Party, R. M. Bjornson.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns a residential home built for Complainant by Respondent American Markland Homes, Inc. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. By written contract, Respondent agreed to construct a house for Complainant in Phoenix, Arizona. Complainant alleges specific deficiencies in the work performed by Respondent, as recited in the 27 items contained in the Corrective Work Order (CWO) issued by Registrar of Contractors Inspector Cliff Frandsen on October 13, 1998. 2. At the beginning of the hearing, Complainant stated that CWO items 8, 11, 12, 13, 14, 17, 20, 22, 23, 24, and 27 no longer require corrective action. During the course of the hearing (between the two hearing days), CWO item 2 was corrected. Respondent stipulated as to item that the kitchen tiles were cracked and needed repair, but disclaimed responsibility as described below in Finding of Fact 6. This leaves the workmanship of the following CWO items in dispute: 1, 3, 4, 5, 6, 7, 9, 15, 16, 18, 19, 21, 26, and the pull-down stairs, which was added without objection by Respondent at the hearing. 3. The weight of the evidence of record is sufficient to support findings that the following items are substandard and below minimum workmanship standards: a) the exterior wrap insulation is missing from the ductwork above the dropped-ceiling hallway; this is not conditioned space as argued by Respondent (part of CWO item 1); b) interior paint and trim carpentry work is very deficient, with numerous problems such as visible tape lines, poor joints and finish on crown moldings, missing and mismatched moldings, rough texture on doors and base moldings, bathrooms painted with flat paint, and painted window frames (CWO item 4); c) exterior concrete columns need touch-up on the joints (CWO item 5); d) garage side door needs repair and repainting (CWO item 6); e) there is a crack in the perimeter block wall (CWO item 7); f) repair two cracks in the garage floor (CWO item 9); g) the blown-in insulation in the attic is not uniform because it gets blown around from the dormer vents and this compromises the R-value (CWO item 21); h) the bottom portion of the doorskins on many of the interior doors was damaged and inadequately repaired (CWO item 26). 4. The record shows that some of the CWO items were corrected by Respondent before the hearing. The record reflects that Respondent attempted to fix the garage floor cracks, but Complainant chose to wait on that item. The record also shows that Respondent was not aggressive in addressing other CWO items like the roof and the interior paint and trim. 5. The evidence establishes that Respondent did not fully comply with the Corrective Work Order. 6. During the construction of Complainant’s house, Complainant shopped for tile flooring. He found tile that he liked and signed a purchase agreement for it with a wholesaler. The wholesaler recommended an installer that Complainant contacted about installing the tile in his house. Complainant went to a jobsite where the installer was installing tile. He observed the work and decided to use the installer for his tile installation. Complainant contracted with the installer to install the tile. The bills for the tile and installation were sent to Respondent. Respondent paid the bills out of the allowance in the contract amount for tile flooring, but denies that Respondent acted as the general contractor for the tile installation. 7. On March 16, 1999, in No. 99F-R0025-ROC, the Registrar of Contractors found that Respondent had knowingly used an unlicensed subcontractor as the painter on Complainant’s house. The Registrar also found that the trim carpenter used on Complainant’s house was unlicensed, but that Respondent did not know nor should he have known that the trim carpenter was unlicensed. Respondent was fined $500.00. 8. Other than set forth above, all other enumerated items of the complaint were either shown to be within minimum industry standards, Complainant failed to meet the burden of proof, or Complainant failed to include them in his complaint before the Corrective Work Order and, therefore, did not raise them in a timely manner. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). 2. The evidence establishes that Respondent has violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7), (23) and (3), namely A.A.C. R4-9- 108. 3. Regarding several of Complainant’s arguments, it is important to clarify the Registrar of Contractors’ role and authority. The Registrar enforces minimum workmanship standards, not “exceptional construction practices” or flawless results. ROC Inspectors are trained to evaluate workmanship with regard to minimum accepted standards in the industry. 4. Regarding the air conditioning, Complainant did not prove his claims that the main air handler’s “noise level” was outside industry standards or that it did not have acoustical lining in accordance with industry standards. Only Inspector Frandsen testified according to minimum workmanship standards, and he testified that the noise was not excessive. Complainant’s witnesses, Mr. Frank and by documentation Mr. Ghan, did not state that the noise level was outside industry standards; they gave subjective opinions. In fact, Mr. Frank testified that he would find the noise level “objectionable.” His subjective opinion, however, is not the standard. Complainant’s evidence fails. Furthermore, if the main air handler is loud, Complainant bears the responsibility because he insisted on deviating from the plans, which everyone agrees would have been a less noisy configuration. 5. Complainant did not provide sufficient evidence to prove that the acoustical lining in the ductwork was outside industry standards. The issue here was whether lining should have been installed inside round ductwork and “distribution boxes” (also referred to as “registers,” “supply boxes,” and “diffusers”). Complainant did not show that industry standard required lining in those areas. 6. As to the stucco repair, again Complainant failed to prove his claim in the face of Inspector Frandsen’s testimony that the repair met minimum workmanship standards. Mr. Frank testified subjectively that the repair was inadequate; he did not compare the repair to minimum industry standards. 7. Complainant’s evidence was insufficient to prove violations regarding the RV gate (CWO item 15), the guest bath door skin (CWO item 18), the scuttle hatch because meets fire code and is functional (CWO item 16), and the pull-down stairs (added at hearing). 8. The evidence shows that Complainant contracted for the tile flooring materials and installation on his own. In that regard, he acted as his own general contractor. Thus, Respondent is not responsible for deficiencies in the tile installation. 9. The dispute about the door hinges is found to be a contractual claim that does not rise to the level of a violation and is outside the scope of the Registrar’s jurisdiction. 10. The record shows some evidence in aggravation of the violations. Respondent used unlicensed subcontractors on several portions of the house, and, not surprisingly, these areas are highly deficient. Respondent did not timely comply with the Corrective Work Order in several respects, but most importantly concerning the roof, which is a significant part of the house. The corrective work on the roof was finally completed during the hearing. The record also shows evidence in mitigation. Other than the recent violation for using an unlicensed subcontractor, Respondent has a long history without any violations. Weighing these factors, appropriate discipline includes a period of probation and a fine for failure to comply with the Corrective Work Order. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 068955, held by Respondent American Markland Homes, Inc., be suspended beginning the effective date of the Registrar’s Order until Respondent has accomplished appropriate and effective remedial work to correct the deficiencies noted above in Finding of Fact 3. IT IS FURTHER RECOMMENDED that if Respondent completes the corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place. IT IS FURTHER RECOMMENDED that, along with any suspension served as a result of not correcting deficiencies as ordered above, Respondent’s Class B license be placed on probation for six months. The probation shall not begin until any suspension that might occur because of failure to correct the deficiencies within the time limit has been lifted. IT IS FURTHER RECOMMENDED that, along with any above-provided discipline, Respondent pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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)(5), unless payment of any outstanding prior civil penalty is tendered.

Done this 26th day of April 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of April 1999, to:

Michael P. Goldwater ATTN: Joyce Armijo Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826