ALJDEC

99F-2641-ROC · Registrar of Contractors · 1999-09-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on September 1, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Earl B. Henry, pro se For Respondent: Ken Trongo, Superintendent, pro se

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: 1. Complainant purchased a new home constructed by Respondent. After Complainant accepted occupancy under the purchase agreement, certain construction deficiencies occurred and keep recurring which led Complainant to file the complaint in this case. Certain items have been corrected according to Complainant’s testimony and will not further be addressed in this decision. 2. The weight and sufficiency of the evidence of record establishes that the following construction deficiencies necessitating repair and correction are attributable to the workmanship of Respondent and must be attended to by Respondent appropriately and timely. c. There is extensive drywall cracking both in vertical walls and in ceilings throughout the house that either have been previously repaired and failed again, or are continuing as unrepaired. These cracks are a direct result of very poor workmanship in the installation and taping of the drywall and/or from incorrect grading of the exterior grounds as will be discussed below. Efforts on the part of Respondent have proved woefully inadequate and will be appropriately considered as a matter in aggravation of the complaint filed by Complainant. d. Texture and painting within the house does not match or blend as a continuous whole throughout the house. e. Door jams or frames in bedrooms and bathrooms have gouges, chips and inappropriate repairs performed to eliminate the same. f. Doors have been improperly cut to size for openings and have been hung incorrectly and do not function for the purposes intended. g. Vinyl floor covering at the front entrance is incorrectly installed and evidences “humping” and looseness at the carpet line. h. Vinyl floor covering in the kitchen has deep scratches or gouges due to sliding or dragging kitchen appliances over the floor without proper protection. i. Kitchen countertop is separating from the wall by a width that is unacceptable by any minimum workmanship standards. This separation continues after prior repair attempts and is evidence that the countertop is not properly fitted for the surface to be covered. j. Cracks in the concrete drive continue to appear along with excessive chipping. k. Stucco cracks and stem wall cracks are present that remain in need of repair. l. The credible evidence establishes that the grading around the home was improperly performed and causes storm water to collect and gather at the stem walls. This evidence, based upon expert testimony, strongly suggests that the excessive drywall cracking and movement of the concrete slap and stem walls will continue unless recommended grading to divert storm water away from the house is accomplished. The report prepared by the expert, Thomas Engineering, submitted into evidence, a copy of which was provided to Respondent well in advance of the hearing, making recommendations as to proper grading is found to be credible. Respondent’s testimony that the lot is graded to retain water at the center of the rear yard is just not credible when juxtaposed against the expert testimony and evidence. In attending to this problem, it is found that Respondent should give significant credence to the expert’s recommendations in correcting the grading of the lot to eliminate the storm water problem. 13. As a result of the complaint being filed in this matter, an on-site inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter (“CWO”) being sent to Respondent requiring that certain corrective or remedial work to be performed within a stated period of time. The CWO confirmed all of the foregoing findings of fact. It is also found that since the date of the CWO Respondent has failed to address numerous items listed that required repair or correction. 14. All other enumerated items of the complaint, presented at the hearing, were either corrected, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof. 15. Respondent’s testimony that access has been denied them is not credible. Complainant’s testimony that on many occasions, after making prior arrangements, a family member would stay home from work or school to be allow access to Respondent to comply with the CWO, but Respondent or its contractors would fail to show as scheduled. For working people, such as Complainant and his family, this is a most aggravating situation and one that should be condoned for any reason.

CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). 2. The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) 3. By a preponderance of all the evidence the Complainant has established that Respondent violated A.R.S. §32-1154A (7), (23), and (3), in the latter case involving Rule R9-4-108, as charged in the Citation and Complaint. 4. It is concluded that the cumulative effect of the entire list of construction deficiencies and Respondent’s failure to properly and timely effectuate professional and workmanlike repairs is a matter to be considered in aggravation of the statutory violations found to exist when determining the fair and just disciplinary penalties to be imposed as a result thereof. 5. 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 of the cited statutes, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation of any such violations. Accordingly, administrative notice is taken of the official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent. An official review of such records reveals that Respondent’s prior record includes no less than six (6) prior cases in which a Corrective Work Order was issued by the Registrar of Contractors against Respondent. Even though most Corrective Work Order’s have been complied with by Respondent, the number of cases within the last two years establishes a pattern that is properly to be considered in aggravation when determining appropriate disciplinary penalties to be imposed as a direct result of this case.

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 credible written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 2, above. 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 above license suspension shall not take place. It is further recommended, in addition to the above disciplinary penalty, if any, that Respondent pay the sum of $500.00 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. It is further recommended, in addition to the above disciplinary penalty, that as an express condition for the next two (2) renewals of Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the Registrar then in effect, Respondent shall be required to pay an additional $300.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. § 32-1132B. Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued.

DONE AND ENTERED this day, September 1, 1999

______________________________________ Neal H. Jordan Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826