ALJDEC

99F-3180-ROC · Registrar of Contractors · 1999-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 1999 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its managing member, Todd Simmons. 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, Complainant purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Subsequent to Complainant filing the instant complaint with the Registrar of Contractors, a jobsite inspection by the Registrar’s appointed inspector was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Although Respondent attempted to comply with the terms and conditions of said Agency directive, for reasons set forth below, Respondent was unable to comply with said directive.

3. The aforementioned Agency inspector appeared at the instant hearing and presented testimony regarding the findings from his original jobsite inspection, wherein he determined that the following construction deficiencies were present in Complainant’s home:

a. There are ripples and a number of visible seams in specified areas of the carpet installation. Although the inspector felt that the carpet was repairable, he testified that Respondent had agreed to replace the carpet in order to satisfy this aspect of the complaint. b. The vinyl floor installation in the kitchen is also rippled. In addition, there were certain edges of the vinyl installation that were peeling and lifting-up. The inspector testified that Respondent had agreed to replace the vinyl floor. c. There are minor hairline cracks visible in specified areas of the interior drywall. In addition, there are areas wherein the drywall tape joints are visible. The inspector testified that Respondent agreed to accomplish these repairs. d. Some areas of the miter joints for the interior wood trim work have opened up and require appropriate caulking and painting repair. The inspector testified that Respondent agreed to perform remedial work in this area. e. Some minor cracking was observed in the exterior stucco along with areas wherein the stucco has chipped off. In addition, prior to the jobsite inspection Respondent had performed a degree of stucco repair but had not completed the necessary painting of said repairs. The inspector believed that, over-all, the stucco application looked good and that primarily the only requirement for remedial work on this item was to caulk and paint the areas in question. The inspector testified that Respondent had agreed to accomplish all required remedial work in this area. f. There is evidence of peeling paint at the front entry door and also at the garage door. The inspector testified that Respondent agreed to accomplish these needed repairs. g. Ceramic tile is installed in the front entry area and the tile grout has become broken at the area wherein the grout meets the front door threshold. According to the inspector, Respondent agreed to repair this area of the floor grout.

4. Although Complainant claimed that water was getting into her garage from the area of the vehicle garage door, the Registrar’s inspector observed the weather-stripping for said door and found same to be properly installed within industry standards. At the instant hearing he testified that it is not abnormal for a minor amount of water to get into a garage from the vehicle garage door and therefore, he did not require any remedial work on this item of the filed complaint.

5. At the outset of the scheduled hearing, Complainant wished to add two items to the complaint that were not on the original complaint. The additional items involved the master bedroom door and the front entry door lock. Although Respondent had not had adequate prior notice of said items, Respondent stipulated that said items could be considered at the instant hearing.

6. Evidence of record was sufficient to support a finding that the master bedroom door is slightly out of square, causing same to stick when opened or closed.

7. Respondent had previously replaced the front entry door lock and in doing so had to move the striker plate in the door frame. The movement of the striker plate left a slight void in the door frame that should be properly filled and painted.

8. The record presented at the instant hearing established that the working relationship between the two parties named herein had totally deteriorated to the point wherein it would be near impossible for them to work together to resolve the issues contained in the filed complaint.

9. The weight of the evidence of record was sufficient to support a finding that Complainant has acted in a very obstreperous manner toward Respondent and its subcontractors. Several witnesses at the hearing described her behavior at the above-described jobsite inspection as volatile and hostile. One of the subcontractors testified that he found Complainant to be acting in a violent manner, such that he believed that she might strike him at any time. There was also evidence that Complainant had acted in an abusive and demanding manner to members of Respondent’s office. It is important to note that Complainant also displayed a very volatile attitude and demeanor during the instant hearing.

10. The record presented herein showed that notwithstanding the hostile attitude of Complainant, Respondent was calm and cooperative at the jobsite inspection. Moreover, the weight of the credible evidence presented herein supports a finding that Respondent made reasonable attempts to gain access to Complainant’s home, for the purpose of accomplishing the remedial work that it had agreed to perform at the jobsite inspection, but that Complainant refused to cooperate to allow the required access.

11. It is important to note that at one point Complainant demanded that paint repairs be accomplished before the new carpet and vinyl floors were installed. Respondent’s plan was to install the new flooring and then perform the paint repairs. The evidence presented at the hearing demonstrated that it is normal to have the flooring installed before paint repairs, due to the likelihood that the floor installation will create damage to the base of the walls, thereby requiring paint touch-up. Thus, Complainant’s refusal to allow Respondent to proceed with the repairs in the order that it felt was appropriate is found to constitute an unreasonable denial of access.

12. There was also evidence that, at one point, Complainant made a demand that all subcontractors must provide written notice of any request for access to her home. The assigned Agency inspector testified that that such a demand was not reasonable.

13. Further evidence of record demonstrated that Complainant failed to respond to certified letters sent by Respondent seeking access to her home, subsequent to issuance of the above-described Agency directive. All of the salient facts and circumstances presented herein militate for the conclusion that Complainant denied Respondent reasonable access to accomplish the necessary remedial work on her home. Therefore, this Tribunal cannot find any failure by Respondent to comply with the terms and conditions of the above-described Agency directive.

14. Complainant claims entitlement to a rescission of the contract for the purchase of her home or that Respondent should be required to pay her the money necessary to hire others to repair her home to her standards. Notwithstanding Complainant’s contention, it is determined that construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work.

14. The items listed in Findings of Fact 3 (a) through 3 (g), 6 and are found to require a degree of remedial work. However, Complainant elected to file her complaint with the Registrar of Contractors and pursuant to said election, she was required to allow the Registrar’s normal process to be followed. The instant record failed to demonstrate any valid reasons why Complainant would not provide reasonable access to Respondent and its subcontractors to perform the corrective work in the manner in which they chose to accomplish said remedial work.

15. Had Complainant allowed Respondent reasonable access to accomplish the remedial work, that it had agreed to perform, then the items on the complaint could have been repaired prior to the instant hearing. Punch list type work that is properly repaired does not constitute a violation of the State’s Contracting laws. Thus, the salient facts and circumstances presented in the instant case fail to support any finding of violations by Respondent of the spirit and intent of the State’s Contracting laws.

CONCLUSIONS OF LAW

The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, November 19, 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