ALJDEC

99F-3277-ROC-com · Registrar of Contractors · 2000-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25,2000. APPEARANCES: David and Lynn Sinnott, Complainants; Denise Troy, Respondent’s attorney; Kenneth and Eileen Macejka, Qualifying Party and Vice President of Respondent; Joe Cotten, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainants have established that Respondent has not complied with the Decision and Order entered by the Registrar of Contractors in this matter. They have also established that reconsideration of the provisional suspension of Respondent’s license is appropriate and that the license should be revoked as a result of Respondent’s failure to comply and his failure to meet minimum workmanship standards. Therefore, based on the following Findings of Fact and Conclusions of Law, I recommend that the Registrar of Contractors revoke Respondent’s license. FINDINGS OF FACT 1. David and Lynn Sinnott contracted with Desert Palm Properties, Inc., the Respondent, to build a new home. When the home was completed by Respondent, the Sinnotts found several items they were unhappy with. When Respondent did not repair them, the Sinnotts filed a Complaint with the Registrar of Contractors. A Registrar of Contractors Inspector confirmed that many of the items were not completed or did not meet minimum workmanship standards. He issued a Corrective Work Order mentioning over 100 items. 2. Respondent completed few of the items on the Corrective Work Order. This resulted in a hearing on January 20, 2000. After that hearing, the Registrar of Contractors issued a Decision and Order on February 24, 2000 adopting the Recommendation of the Administrative Law Judge. The Order, then, was that Respondent was to complete several items listed in 35 paragraphs in the Findings of Fact of the recommendation or suffer a provisional suspension of the license. When the parties disputed whether the work was finished, Registrar of Contractors Inspector Joe Cotten conducted a compliance inspection on June 12, 2000. His report held that 23 items enumerated in the Administrative Law Judge’s recommendation, many of which listed several separate items themselves, were not attempted, were not completed, or did not meet minimum workmanship standards. The hearing took place on September 25, 2000. 3. Although the Sinnotts eventually arranged to give access to Respondent on any Tuesday and Friday without notice and on evenings and weekends with at least two days advance notice, and although Respondent or its subcontractors came to the home about 10 times, many items were untouched or not completed and some were completed in a manner that did not meet minimum workmanship standards. The most obvious items were a bowed wall, unmatching touch-up paint, unfinished moldings and holes in the walls by the electrical outlets. An air conditioning unit, that was the subject of great debate between the parties, was moved in such a way that it was visible from the street and violated the Complainants’ homeowners’ association rules. These items alone were sufficient to establish that Respondent failed to comply with the Registrar of Contractors’ order. 4. At hearing, Ken Macejka, the company’s qualifying party, testified that he did not know the items were not completed. The Sinnotts responded to this defense by saying that Respondent was responsible to complete the items and did not even touch many of them. He was at that home at various times doing other repairs and could have seen for himself what was finished. And he could have come specifically to ensure that his responsibilities were met. Respondent’s attorney complained that the Sinnotts were not communicating with Respondent except by mail, but did not establish that they had any obligation to communicate any other way. 5. Mr. Macejka testified that it was impossible to repair the doors, which were not latching properly. The security pin was falling into the strike plate on many of them, allowing the lock to be jimmied. The Sinnotts testified that some of the doors had been repaired previously, but later, when the uneven reveals were corrected, stopped working again. Mr. Sinnott also testified that he had obtained estimates to repair the doors and there was no mention of this being impossible. Overall, the argument that the doors could not be corrected was unconvincing. Respondent had many opportunities over the course of this Complaint to repair the doors or replace them if necessary. Instead, they were left in poor working condition with no bore holes and unfinished sanding and painting around the strike plates. 6. Photographs submitted into evidence by the Sinnotts showed unsanded or ungrouted moldings in various places in the home, just as a small example of the overall unsightliness left by Respondent. Regarding this and other unsightly problems, Respondent’s attorney objected that they are based on the subjective opinion of the Registrar of Contractors Inspector and therefore give no notice to the Respondent of his potential violation of minimum workmanship standards. The Registrar of Contractors Inspector did reverse his opinion in two matters during the hearing; however, a review of the evidence established that this argument holds no merit in this case. The unsightliness of most of the remaining items would have been obvious to any reasonable person if the photographs admitted at hearing were representative of all the items. Some paint touch-ups that were attempted were given semi-gloss paint over flat paint, sometimes without filling or sanding holes. Further, Mr. Macejka stated outright at the compliance inspection that he refused to install the handicap bars or straighten the cactus as ordered. The weight of the evidence is that the work did not meet minimum workmanship standards and was not corrected as ordered. 7. Respondent objected that Complainants did not give reasonable access to the home for the corrective work. Indeed, some appointments made by Mr. Macejka to have subcontractors come to the home had to be canceled because he did not give enough time for Complainants to arrange to get off work. This did impair the completion of some work. Complainants should have made other arrangements for someone, perhaps a friend, to be at the house if other week days were needed. Normally, their failure to give freer access to the home might result in giving additional time to Respondent to complete the repairs or could even excuse Respondent from performance. However, Respondent had from February 24, 2000, the date the order was issued by the Registrar of Contractors, to May 30, 2000, after which Complainants asked that no more repairs be made (due to Respondent’s filing a Complaint in Superior Court prompting their need to preserve any evidence in case it went to trial). Even with the time constraints put on Respondent by the Sinnotts, the work should have been substantially completed if attempted with diligence in the time allowed. 8. It should be considered a matter in aggravation that Respondent submitted an inaccurate statement to the Registrar of Contractors that it had “made every attempt” to comply with the Registrar of Contractors’ order and had the suspension lifted while conditions as obvious and unsightly as the moldings had not even been touched. Though Respondent made a last- minute request to make repairs, Complainants’ response was to allow it if a Registrar of Contractors inspection were arranged first. Respondent made no attempt to meet this request. CONCLUSIONS OF LAW 1. The Registrar of Contractors may suspend or revoke the license of any licensed contractor within this state if he or she commits any of the acts or omissions set forth in subsection A of A.R.S. §32-1154. 2. 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 applicable rule in the Arizona Administrative Code in this case requires that contractors meet minimum workmanship standards. A.A.C. R4-9-108. Respondent argued that some of the findings by the Registrar of Contractors Inspector that the work did not meet standards were based on the subjective view of the inspector. While unsightliness may be subjective, it is a matter of workmanship that a project have an acceptable appearance when finished. Further, the booklet on workmanship standards put out by the Registrar of Contractors does require that joints on moldings fit securely and be properly filled and sanded. (See Carpentry-Finish-Interior, A Guide for Contractors, October 1998, Minimum Workmanship Standards for Licensed Contractors.) Even if some of the items found by the Registrar of Contractors Inspector to not meet standards were not specifically referred to in the booklet, the pictures submitted by Complainants showed that Respondent, using a reasonable standard, would be aware that they did not meet workmanship standards. 3. 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”. Complainants testified as to the inconvenience and frustration of living with an incomplete home. Some cabinets in their home were also bleached from exposure to sunlight while waiting for a repair to some shutters that was very slow. While these problems are disturbing, they were not established to be a “substantial” injury. On the other hand, the unfinished items have now been clearly shown to be unrepairable by the Respondent. With a great deal of work to be finished on the home, Complainants will have to undertake to have it done themselves at great expense. This was established to be a substantial injury. Thus, Respondent is in violation of this provision of the law. 4. 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. Complainants have offered sufficient evidence to show that Respondent had a reasonable period of time to complete the work first ordered in the Corrective Work Order, including time before and after the first hearing. Yet numerous items obviously in need of correction were not touched or were not completed. Clearly, Respondent has been in violation of this statute. 5. Respondent argues that his license cannot be revoked without a hearing. This is true pursuant to A.R.S. §41-1064. Here, Respondent has had, not one but two hearings. On both occasions, potential revocation of Respondent’s license was an issue. The Notice of Hearing regarding the compliance hearing stated that the purpose of the hearing was whether Respondent had substantially complied with the Registrar of Contractors’ order and reconsideration of the penalty imposed by it or that may be imposed as a result of this hearing. Clearly, Respondent has received sufficient notice that he may have his license revoked as a result of his failure to complete the repairs to this home. Repeatedly, his efforts to do so have fallen far short of offering minimum workmanship to the Complainants on their home. 6. Respondent has had access to the home which was limited. However, he also had additional time to complete the work. Respondent failed to complete the work as ordered or to show sufficient diligence to convince the Administrative Law Judge that a good faith effort was being made. This has caused Complainants to live with an unfinished house for over a year and to incur great expense in having the items completed and repaired. Respondent did not take appropriate action on the Corrective Work Order in a reasonable time. And he did not meet minimum workmanship standards in his work. Therefore, Respondent’s license should be revoked.

RECOMMENDED ORDER Based on the foregoing considerations, I recommend that the Registrar of Contractors revoke Respondent’s license on the effective date of the Registrar’s order in this matter. Done this day, September 29, 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