ALJDEC

99F-1764-ROC-com · Registrar of Contractors · 2000-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13, 2000. APPEARANCES: Bill Vance, Complainant; Brad Denton, Complainant’s attorney; Jeff Burkett, Respondent’s qualifying party; John Ratcliff, Registrar of Contractors Inspector; Marting Irvin, observer; Linda Bowlby, observer; and Tom Sauerland, observer. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. Because some minor items of repair remain to be done on the Complainants’ porch, the Registrar of Contractors has jurisdiction to enter a provisional suspension requiring Respondent to complete those items before closing this Complaint. Complainants have failed to establish, however, that all of the items complained of are Respondent’s responsibility. Therefore, I recommend that a provisional suspension be entered against Respondent’s license allowing Respondent to complete the few remaining items of repair noted below and potentially avoid any discipline in this matter at all. FINDINGS OF FACT 1. Grand Avenue Awning and Patio Builders, Inc. (“Grand Avenue”) originally built a porch for Complainants which was not in conformity with the plans and had to be moved 17 ½ inches. Complainants originally filed a Complaint to require Grand Avenue to move the porch but the parties settled the matter without going to hearing. As a result of the settlement of the parties, the Complaint was closed and Grand Avenue moved the porch, as agreed. 2. The settlement also provided that Grand Avenue was to clean up after moving the porch and patch any areas damaged because of the move. Complainant Bill Vance requested a compliance hearing in the above matter claiming that Grand Avenue did not clean up some aluminum shavings in the carpet. Mr. Vance also argues that the roof of the porch now leaks, some caulking has dripped, the carpet at the door is buckling, the concrete was not patched correctly, and the storage under the porch is less than it was before the porch was moved. He also complained that, although when measured as Grand Avenue measured it, the porch was indeed moved 17 ½ inches, the porch railing is in front of the trim around the fuse box. He also stated that there is a patch of paint missing on the railing and another place on the railing which was scratched. 3. John Ratcliff, an Registrar of Contractors Inspector, visited the Vance home on June 12, 2000. Present were Mr. Vance and Mr. Burkett, Grand Avenue’s qualifying party. He found that the porch had indeed been moved as agreed. He found that there were some items which should be redone, but that they were so minor that the work would take less than two hours. He recommended that Grand Avenue be allowed to complete those small items and then the job would meet minimum workmanship standards. 4. As to items needed more work, Mr. Ratcliff found that the concrete had been repaired but with a material that was not suited to the concrete. It was a small patch but should be redone, he said. Mr. Ratcliff found there were some fasteners sticking up from the concrete which should be chiseled off and the concrete patched there as well. Mr. Ratcliff found two nail holes in the wall of the house which had not been patched. He found that the dripped caulking should be trimmed. 5. Mr. Ratcliff conducted a test of the roof to determine if it was leaking. He sprayed a hose hard on the area Mr. Vance claimed was leaking for about 5 minutes. Although the test was the equivalent of more rain than would normally fall in Arizona, he found no leak at that spot. (There was a leak where the caulking had dripped, however, which should be repaired.) During the test of the roof, he noticed that the water was running off the porch roof and out the downspout in such a way as to promote pooling by the house rather than directing it to the side of the house as it should. This, he agreed, would be a minor repair. 6. Mr. Ratcliff also observed the electrical box. While he agreed that the porch railing rode against the trim around the box, he found that it did not obstruct the opening of the box and met the intent of the plan. Mr. Ratcliff also noted some scratches on the railing, a place which was not painted and some slight buckling of the carpet. The railing was also slightly crooked. It was also installed by another contractor who was hired by Mr. Vance directly and not by Grand Avenue. Mr. Ratcliff could not tell how the porch railing had been scratched or investigate the minor buckling of the carpet. He was not told about the aluminum shavings in the carpet at the investigation. 7. Mr. Ratcliff saw the area under the porch. He found that there were extra supports added but that they did not impeded access under the porch, only lessened the space there. 8. Mr. Ratcliff opined that Grand Avenue should be responsible for the fasteners on the concrete and the concrete repair that should be done over, the leak by the caulking and trimming the caulking, turning the downspout to direct water differently, and the nail holes in the wall. 9. Mr. Burkett of Grand Avenue testified that the porch was moved in a good faith attempt to comply with the settlement. He stated that he vacuumed the porch himself three times and did not believe there were any aluminum shavings in the carpet. He also did not believe that the water in Vance’s photographs came from a leak in the roof of the porch. He stated that it could have come from a leak in the roof of the home, but the test by the Inspector proved that it was not a problem with the roof he built. Mr. Ratcliff agreed in his cross-examination that the cause of leaks are very difficult to determine because water runs everywhere and can run a long time before coming out. He pointed out, as did Mr. Ratcliff, that the carpet was two years old and could have buckled from many things. Mr. Burkett stated that he was very willing to complete the concrete repairs and other remaining items but argued that they were so minor that they should not effect his license. He even offered to seal the base of the deck even though this was not part of the original contract. Regarding the decreased space under the porch, Mr. Burkett testified that building codes changed between the time he built the porch the first time and when he moved it. Additional supports are now required and he placed them at no additional cost. He pointed out that this was a benefit to Mr. Vance because it makes the porch more sturdy. Further, he stated, storage under the porch was not part of the original agreement. 10. Mr. Vance agreed that he was present when the porch was moved and had agreed to the placement of it. He heard someone pounding underneath the porch, however, and wondered if they could have moved it out of place causing the railing to be in front of the trim on the fuse box. Regarding the age of the carpet, Mr. Vance testified that he doesn’t use the porch and therefore the buckling must be from the move. Mr. Vance did relate many instances of being in the porch when he testified about how he found the shavings, the fasteners on the concrete and the leak. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(2), (3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. 4. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. 5. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 6. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 7. While the parties in this matter did settle that hearing, the Registrar of Contractors retains the power to discipline the license of a contractor if the terms of the settlement are not complied with by the contractor. 8. In this case, however, the contractor has complied to the point where only a few items need repair. Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. In this regard, the Registrar of Contractors generally allows contractors a reasonable opportunity to complete necessary remedial work. 9. Considering the size of the job to be done under the settlement, it would be expected that some things would need to be touched up. Those items should be limited to repair of the concrete be redoing the former repair and chiseling out the fasteners and repairing them with a concrete- like substance, filling the two nail holes, adding some caulk at the point of the leak (not the place where Vance claims it leaked), trimming the dripped caulk and adjusting the downspout. 10. Vance provided insufficient evidence to establish the existence of the other complaints or that they were the responsibility of the Respondent. 11. Vance requested that, even if I recommend that Respondent be allowed to make repairs, another contractor be required to do it because of the animosity between the parties. The record does indicate that Vance did at one time not allow Burkett full and complete access to the porch to do repairs. If this should happen again, Burkett should be released from any responsibility in this matter. There is no compelling reason other than hurt feelings, however, that Respondent should be required to hire another contractor to make his final repairs. 12. Vance wished to state on the record that he has refused to pay any money on the $2299 contract beyond the $500 down payment and the Respondent has pursued payment by filing a lien. Since the parties are pursuing this matter in another forum, it need not effect the outcome of this Complaint. RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class B license be temporarily and actively suspended until the Registrar receives proof that Respondent has redone the concrete patch with a more concrete- like substance, removed the fasteners in the concrete and patched them with a concrete-like substance, added caulk at the area where the caulk was dripping and which leaked, trimmed the dripped caulk, filled the two nail holes in the wall of the house, and adjusted the downspout to direct water in a more efficacious way. If the Registrar of Contractors receives proof that Respondent has completed the above work, or that Respondent was prevented in any way from obtaining access to Complainant’s property to complete the work, the above indefinite license suspension should not take place. No additional disciplinary action is recommended.

Done this day, June 16, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 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