ALJDEC

99F-2024-ROC · Registrar of Contractors · 1999-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 1999. APPEARANCES: Joseph Meaney, attorney for Complainants; Rosa and Lucio Real, Complainants; Elvia Martinez and Jose Betemit, witnesses for Complainants; Towana McDonald, attorney’s assistant; Oscar Hernandez, Respondent; John Ratcliff, Registrar of Contractors Inspector; and Lilia Nieto, Interpreter. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT 1. Complainants, home owners, contracted with Respondent, the owner of Guadalupe General Construction and Remodeling, to remodel the bathroom in their home. The contract provided for the following services:

a.) Changing the bathtub; b.) Changing the toilet and replacing the sink with a six foot vanity, to be installed at another wall of the bathroom and retexturing of the wall. c.) Putting in a ceramic tile floor. d.) Installing ceramic tile on the wall side of the bathtub and on the east side of the bathroom. e.) Changing the bathroom window and door. Installing lights above the vanity. f.) An initial payment of $1,500.00 with the work to begin on November 17, 1998. g.) A second payment of $1,000.00 when the major work was finished. h.) A final payment of $500.00 after the work was finished. The work to be finished by November 25, 1998.

2. On January 12, 1999, Complainants filed a Complaint with the Registrar of Contractors stating that the work was not done according to the plans, that the final payment of $500.00 had not been made, and stating as follows:

agree to changes pipes to stop the leaking of water and the bathroom is leaking even more water right now, did not replace sink, did not replace cabinets for towels, placed a transparent window which is visible, toilet is slanted and not straight, tiles are not even, cannot regulate or choose water in the bathtub so water can come out either from top or bottom, water comes out from top and bottom at same time, the door frame of bathroom is cut uneven, did not replace light bulb protector on the bathroom ceiling, the bathtub is not flushed with the floor, intended to even out bathtub with the floor and now the edges are cracked, the toilet gets plugged often, did not replaced water supply line for toilet, toilet not set right and possible problems with sewer on the floor. The water is leaking and entering the bedrooms and closets and into the kitchen. Please advice us or sent an inspector. It is terrible to live in these conditions.

3. On March 2, 1999, an inspector from the Registrar of Contractors visited the jobsite and inspected the work done by Respondent. He found that the work did not meet minimum workmanship standards in certain areas. The showerhead installed by Respondent leaked as did plumbing in the wall, as did the bathtub drain. The leaks, as well as Respondent’s failure to return to the home and complete his work, caused damage to the carpet in the closet in an adjoining bedroom and to the ceiling by the shower where water sprayed upwards from the showerhead whenever the water was turned on for either a bath or a shower. The toilet was poorly installed, was not in working condition, leaked between the tank and the bowl and was sealed to the floor improperly. The tile on the floor was acceptable but the tile on the walls had crookedly cut tiles (with overly wide grouting to cover the error), was bowed out where the tile met the tub, and was not plumb with the wall. The bathroom window had clear glass when obscure glass is the industry standard for a bathroom. The door to a cabinet adjacent to the bathtub was missing. The vanity was not six feet long as required in the contract and did not fit the area it was in. The ceiling light cover had been removed during construction and was not replaced. The door was cut crookedly and inappropriately. The bathroom accessories, such as the towel bard, toilet paper holder and mirror, had been removed and not replaced. Respondent had also done plumbing and electrical work which was not permitted under his license, had not obtained a permit, and had not had the proper inspections done on his work. 4. The inspector issued a Corrective Work Order on March 4, 1999 ordering Respondent to correct the work which did not meet minimum standards and ordering Respondent to hire a licensed plumber and electrician to complete the additional plumbing and electrical work required. He also ordered Respondent to obtain the proper permits and inspections. 5. The weight of the evidence adduced at hearing established that, though Complainants took 10 or 11 days off work to meet with Respondent and allow him to complete the work on the bathroom, Respondent did no additional work until August 1999. This was in spite of several unreturned telephone calls and even registered letters from Complainants telling Respondent that the showerhead and bathtub were leaking and destroying the home. Respondent submitted at hearing that he was robbed twice shortly after the work began and had difficulty finishing the job in the time agreed to in the contract. However, he offered no plausible explanation for abandoning the job for so many months. 6. When Respondent did return to the jobsite in August, he had hired electrical and plumbing contractors to complete the areas of work in which he had exceeded the scope of his license, including repairs to the toilet. The door to the bathroom was properly replaced and a permit was obtained. 7. All other work on the Corrective Work Order was either not done or was not done in accordance with minimum workmanship standards. The carpet damage was not addressed; the wall tile was not repaired, Respondent had simply tried to cover the area with more grout; instead of replacing the window with obscure glass, Respondent had tried to glue obscure glass on top of the window; though a door had been installed on the bathroom closet, it swings the wrong way; Respondent constructed a home-made vanity rather than purchasing and installing the one which was agreed upon; the ceiling light cover had not been replaced, nor had the accessories; and a very large patch on the wall beside the bathtub was off-color and poorly textured. 8. In addition to suffering the inconveniences of the leaky shower and the many attempts to get Respondent to return and fix his work (including numerous days taken off work to try and meet Respondent at the house), Complainants are permanently inconvenienced by the fact that Respondent raised their bathtub four inches off the floor when he installed it. This makes it difficult for Complainants’ children to climb into the bathtub to take baths and, the weight of the evidence indicates, was due to the fact that Respondent was too inexperienced to install the bathtub properly.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4) and 32-1156. 2. The Citation and Complaint issued in this matter cites potential violations of A.R.S. §32-1154(A)(3), (7), (17), and (23) and A.A.C. R4-9- 108. 3. A.R.S. §32-1154(A)(3) prohibits licensed contractors from “[v]iolation of any rule adopted by the registrar”. 4. A.R.S. §32-1154(A)(7) prohibits licensed contractors from “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. A.R.S. §32-1154(A)(17) prohibits the contractor from knowingly contracting beyond the scope of his license. 6. A.R.S. §32-1154(A)(23) prohibits licensed contractors from “[f]ailure 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 written directive from the registrar…” 7. A.A.C. R4-9-108 provides, in pertinent part, “[a]ll work shall be performed in a professional and workmanlike manner”, and “shall be performed in accordance with any applicable building codes a professional industry standards”. 8. The Registrar of Contractors “is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and affording the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.” Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (App. 1981). 9. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg at al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 9. In his defense, Respondent offered at hearing that he had been robbed and had difficulty returning to the site in a timely manner because of it (as noted above), that he was under the impression that he could do small jobs involving electrical and plumbing work without violating the restrictions of his license, that the bathtub was not as high as Complainants claim, and that he’d had troubles ordering the vanity the parties agreed on. He also implied that the shower leak was due to Complainants hanging something from the pipe. Amazingly, Respondent also offered that, for the price he charged, Complainants were not entitled to a better quality job. 10. Unfortunately, Respondent’s claims cannot stand up to scrutiny. His claim that he was robbed causing his delay in returning to the site might excuse a delay of a week, but it does not excuse the many months he left Complainants high and not at all dry. Likewise, some difficulty in ordering the vanity should have been overcome with just a modicum of diligence over the many months Complainants were waiting. Considering the many weak excuses offered by Respondent, the shabbiness of his other work, and the callousness with which he treated Complainants’ difficulties, it is hard to believe his claims that the bathtub was not raised as much as Complainants state or that Complainants somehow caused the shower to leak. Respondent submitted a brochure in which the City of Phoenix set forth a bond requirement stating that construction work costing less the $750.00 could be done by an unlicensed contractor. It was offered to establish that Respondent had not knowingly contracted outside the scope of his license. However, Respondent must be responsible to know the limits of his contract and to abide by them. Finally, regardless of what Respondent charges, he is still responsible for minimum workmanship standards if he wishes to avoid the necessary consequences to his license. 11. Regarding the allegation that Respondent violated a rule of the Registrar of Contractors, specifically in doing work which did not meet minimum workmanship standards, Complainant has more than adequately sustained its burden of proof. It is doubtful whether Respondent is competent to do the work since, in close to a year’s time, the only work he completed competently on the first try was the floor tile, and the only work he completed competently on the second try was replacing the bathroom door, obtaining a permit and hiring another contractor. Though the Registrar of Contractors Inspector testified that Respondent should have another try at doing a proper job, that he may be competent, the inspector was under the impression the Respondent had repaired the toilet, which the invoices from the plumber indicate were done by the plumber. This leaves only the floor tile and door which were done properly by Respondent’s own hand. Further, though Respondent may have the skills to do a proper job, his actions over the several months that this matter was pending indicate that he is not willing to exert the effort to do so. 12. Regarding the allegation that Respondent did a “wrongful or fraudulent act” resulting in substantial injury to another party, Complainants have also met their burden. In addition to doing a poor job, Respondent for many months ignored Complainants’ pleas to return and correct a leak which was not only inconveniencing them but was damaging their home. In fact, he only returned when he was under duress to comply with the Corrective Work Order. Even then, his repairs to the wall tile and window were slap-dash, the installation of the door was backwards, the vanity was installed not in accordance with the agreement, and other items were not addressed at all. 13. Respondent knowingly contracted beyond the scope of his license by knowingly performing plumbing and electrical work within the context of his contract with Complainants. Further, Respondent did not comply with the Corrective Work Order because, even after his August visit, the work was only partially done and what was done, was done poorly except for a few items. 14. In addition to the violations listed in the Citation and Complaint, Respondent deviated from the plans and abandoned the job in violation of A.R.S. §32-1154(A)(1) and (2).

RECOMMENDATION Based upon the foregoing, the undersigned Administrative Law Judge recommends to the Registrar of Contractors that Respondent’s Class B-03 license be revoked upon the effective date of the Order entered in this matter. In consideration of the fact that Respondent has had several opportunities to correct his work and has showed little interest or competence in doing so and has inconvenienced Complainants and disrupted their lives due to his failure, Respondent should not be allowed to return to the site to so additional work. However, since Respondent’s license was new at the time of the job, it is further recommended that if Respondent causes another licensed contractor to accomplish the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license revocation should not take place. It is further recommended, if Respondent’s license is not revoked, that Respondent’s Class B-03 license be placed on suspension for a period of seven (7) days, followed immediately by a period of one (1) year disciplinary probation. This additional disciplinary penalty should commence on the effective date of the Order entered in this matter if no revocation is to take place. It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $ 300.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license should 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.

The Registrar of Contractors is empowered by statute (A.R.S. § 32- 1152) to increase the license bond of a contractor after a disciplinary hearing in an amount up to ten times the sum otherwise required based on annual gross volume. Under all the facts and circumstances in this case, some portion of the aforesaid power should be exercised, to be applicable for a fixed time period. It is recommended that Respondent’s bond be increased by $1,500.00 for a two (2) year period.

Done this day, September 23, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. 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