ALJDEC

99F-2284-ROC · Registrar of Contractors · 1999-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 1999 APPEARANCES: Complainants appeared through Co-Complainant, Norman Ferguson and Respondent was represented by its attorney, Mark Chester. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainants purchased new home construction from Respondent. Complainants allege certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below.

2. During the course of the instant hearing, Complainants averred that they were withdrawing the issue of repairs to the living room window sills.

3. The weight of the evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Although Respondent has performed repairs on the issue of leaking windows, it was adequately demonstrated that a specified dining room south east side window still leaked water and has allowed water penetration to damage the interior window sill in said area. Notwithstanding Complainants claim that they believe other windows continue to leak water, the evidence presented at the instant hearing was not sufficient to support such a contention. It is important to note that Complainants did not notify Respondent of the continuing water leakage on this one window until the date of the pre-hearing inspection, that was conducted by the assigned inspector for the Registrar of Contractors. b. Notwithstanding Respondent’s efforts to repair the water leakage at the over-head vehicle and “man” doors for the garage, it was adequately shown that water still penetrates into the interior of the garage at the bottom corners of the over-head door and also penetrates through the lock- set of the “man” door. Complainants did not advise Respondent of these continuing leaking problems until the date of the aforementioned pre- hearing inspection. c. Although Respondent had recently adjusted the front entry door, it was shown that said door still does not fit tight against the adjacent weather-stripping and therefore, requires further adjustment. d. A previously repaired drywall ceiling crack in the garage has re- cracked and needs to be repaired and repainted.

4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on the items, total compliance was not accomplished. It is important to note that the list of remedial items on the Agency directive was extensive and that Respondent apparently accomplished, albeit somewhat belatedly, the necessary corrective work on the majority of items set forth in said directive.

5. Regarding the issue of the French doors, it was shown that Complainants accepted a $2,000.00 payment from Respondent as compensation for the French door complaint and other issues. Evidence of record was sufficient to show that this $2,000.00 payment constitutes an agreement of accord on the French door issue and thus, Complainants are properly estopped to complain about the French door installation.

6. Although Complainants contend that they have experienced excessive utility bills due to deficiencies in Respondent’s workmanship, evidence of record demonstrated that Respondent has performed remedial work in this regard and at the present time there is insufficient evidence to show that there is anything unusual about the current utility bills experienced by Complainants. Thus, Complainants failed to sustain the requisite burden of proof on this issue necessary to establish that there is any current problem in the operation of their heating/air-conditioning system.

7. Complainants are extremely frustrated with the problems they have experienced in their new home and the fact that they have had to endure approximately eighty (80) days of having repairmen in and around their home since the date they commenced occupancy. A homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. Although the facts presented herein do not justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor an opportunity to correct construction deficiencies which are determined at a hearing, Respondent is on notice that it will have one, and only one, final opportunity to correct the deficiencies set forth in this Order.

8. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that there were none on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the leaking window and damaged window sill located in the dining room, the water penetration from the over-head and “man” doors for the garage, the installation of the front entry door against the adjacent weather-stripping, the garage ceiling crack, and the re-painting of the repaired garage ceiling crack. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 45 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. 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 shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, October 25, 1999

______________________________________ Mark A. Silver 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