ALJDEC

99F-3522-ROC-com · Registrar of Contractors · 2000-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2000 APPEARANCES: Joseph Rotella on his own behalf; Jerry Karaszewski on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT

1. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors (“Registrar”) to conduct a hearing limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter.

2. On July 28, 2000, the Registrar issued an Order adopting the Administrative Law Judge’s Recommended Order which recommended that the settlement agreement reached by the parties on July 13, 2000, be adopted. The settlement agreement addressed four items that were listed in a Corrective Work Order issued by Registrar Inspector Joseph Cotton on October 18, 1999. 3. On October 4, 2000, the Registrar issued an Order Reopening Re: Breach of Settlement and a Notice of Hearing was subsequently issued, resulting in the instant hearing.

4. Based on the procedural history of this matter, at the outset of the hearing the parties were advised that the scope of the instant hearing was limited to the issue of whether Respondent has complied with the terms of the above-mentioned settlement agreement.

5. The original Order of the Registrar in this matter indicated that the parties had reached a settlement agreement wherein Respondent was to accomplish a number of tasks within a stated period of time and Complainant withdrew his filed complaint.

6. During the hearing, Complainant presented evidence that the only issues outstanding involved replacement of the rear exterior doors ( French doors, laundry room door, and master bedroom door to the rear patio), the front door leak, and slope of the front deck. All other items of the settlement agreement have been properly accomplished.

7. With respect to the above-mentioned rear and interior doors, conflicting evidence was presented by both parties. Inspector Joseph Cotton performed a jobsite inspection of the premises on November 2, 2000, in the presence of Complainant, Complainant’s wife, and Respondent’s president Jerry Karaszewski (“Mr. Karaszewski”).

8. During the hearing, Inspector Cotton testified that the French doors have been replaced but the jambs on both sides of the doors are out of plumb, and the stucco has not been redone. Mr. Karaszewski testified that Respondent has been unable to patch the stucco because Respondent’s stucco subcontractor cannot determine the material previously used by Complainant’s stucco subcontractor. Therefore, Respondent asserts that it is unable to match the stucco. Mr. Karaszewski also testified that Respondent has been unsuccessful in its attempt to obtain information from Complainant’s stucco subcontractor concerning the original stucco material used. Respondent maintained that it left several messages for Complainant that were not returned. Complainant represented that he did not receive such calls from Respondent.

9. According to Respondent, because the French doors were replaced by steel doors, the jamb was not as wide as it previously had been. With respect to Inspector Cotton’s finding of the jambs are out of plumb, Mr. Karaszewski testified that the walls are out of plumb and that Respondent did not construct the walls. However, because Respondent undertook to replace the French doors , it must perform such work in accordance with minimum industry standards. Inspector Cotton determined that the jambs are out of plumb and, as such, the installation of the French doors do not meet minimum workmanship standards.

10. During the hearing, Mr. Karaszewski admitted that the sills have to be resealed. He assumed that Complainant was going to have his own subcontractor perform that work. It is uncontroverted that the parties never discussed that aspect of the work and Respondent never informed Complainant that it would not be responsible for such work. Under the circumstances, it is determined that having undertaken to perform certain repairs as part of a settlement agreement, Respondent is responsible for any additional work that requires completion as a result of by the work undertaken by Respondent in furtherance of the settlement agreement. Therefore, it is determined that Respondent is responsible for resealing the sills.

11. With respect to the laundry room door and master bedroom door to the rear patio, Inspector Cotton testified that the thresholds and sweeps require adjustment, stucco requires patch work, and additional acrylic coating needs to be applied to the front and rear deck.

12. Mr. Karaszewski testified that the thresholds of the above- mentioned doors were perfect, claiming that Inspector Cotton only looked at the doors from the exterior and not the interior. Contrary to that testimony, Inspector Cotton testified that he inspected the doors’ threshold from the interior and observed them to be deficient in that they allowed sunlight to appear. It is determined that the testimony of Inspector Cotton is more persuasive and credible than the testimony of Mr. Karaszewski with respect to this item.

13. With respect to the front door leak and front deck slope, Inspector Cotton did not observe and had no first hand knowledge as to whether the front door currently leaks. Although Inspector Cotton testified that Complainant had informed him that the leak still exists, Complainant failed to present credible evidence establishing that the front door leaks.

14. Inspector Cotton observed that some areas of the front deck have no slope and water ponds on the front deck. That situation indicates that the remedial work performed by Respondent with respect to the front deck does not meet minimum workmanship standards.

15. The evidence of record established that Respondent has cut down the front concrete step as part of the remedial work performed pursuant to the settlement agreement. Mr. Karaszewski testified that he attempted to obtain a concrete subcontractor without success so he performed the work himself.

16. The weight of the credible evidence establishes that Respondent left the front concrete step in a rough condition even though the remaining steps have a smooth finish. Respondent admitted that it did not have the proper equipment to perform the work on the front step and did not complete that work.

17. The evidence of record also established that Respondent left debris by the front steps. 18. It is determined that the remedial work performed by Respondent on the front step does not meet minimum workmanship standards.

19. Respondent hired D W Roofing to apply acrylic coating on the front deck to help alleviate the problems set forth in Item 4 of the above- mentioned Corrective Work Order. Complainant never contacted nor contracted with D W Roofing to perform that work. During the hearing, Complainant presented an invoice he received from D W Roofing in the amount of $470.70 for application of the acrylic coating to the front deck. Complainant asserts that he is not responsible for the invoice and the evidence of record supports that assertion.

20. Contrary to Respondent’s belief that it should not have to incur the expense of the application of the acrylic coating, the weight of the credible evidence shows that Respondent hired D W Roofing to apply the acrylic coating as part of the remedial work undertaken in furtherance of the settlement agreement. Under the circumstances, it is determined that Respondent is responsible for the above-mentioned D W Roofing Inc. invoice.

21. There was no dispute that the settlement agreement adopted in the original Decision and Order in this matter required that all remedial work be completed by September 13, 2000.

22. The evidence of record established that the work was not completed by September 13, 2000, and thus, Respondent failed to substantially comply with this requirement of the original Decision and Order entered in this matter.

23. Respondent has attempted to comply with the settlement agreement to some degree but has not completed the remedial work contemplated therein, despite having had ample time to perform. Further, the evidence of record established that with respect to the items still at issue, Respondent has not performed effective and appropriate repairs in accordance with minimum workmanship standards.

24. Complainants object to having Respondent perform any further remedial work on their home. Although it is not uncommon in the industry to have corrections, repairs, or replacements of poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards, a homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. 25. The Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing. Under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause other properly licensed contractors to complete the remedial work. Consequently, Respondent is on notice that it will have one, and only one, final opportunity to correct the deficiencies set forth in this Order by causing other properly licensed contractors to perform such work at Respondent’s expense, if any is incurred.

CONCLUSIONS OF LAW

1. Respondent failed to fully comply with the terms and conditions set forth in the original Decision and Order issued in this matter.

2. In view of Respondent’s failure to accomplish substantial compliance with the July 28, 2000 Order of the Registrar and in accordance with the Second Notice of Hearing issued in this matter, it is determined that disciplinary sanctions should be imposed against Respondent’s Class B license, in the event that Respondent fails to pay the $470.70 D W Roofing Inc. invoice and fails to cause other properly licensed contractors to complete all remaining remedial work set forth in the settlement agreement adopted by the July 28, 2000 Order of the Registrar. RECOMMENDED ORDER

In view of the above, 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 receives written proof that Respondent pays D W Roofing Inc. the above-mentioned $470.70 invoice and has caused other properly licensed contractors to accomplish appropriate and effective remedial work with respect to the items set forth in paragraphs numbered 8, 9, 10, 11, 12, 14, 16, and 17 of the above Findings of Fact as well as to all other items or areas that necessarily require additional work due to such remedial work.

It is further recommended that if Respondent accomplishes all of the above acts on or before the effective date of the Order entered in this matter, then the . . . . . . . . . above-mentioned license suspension shall not take place and, in that event, the Citation issued in this matter, together with the Complaint upon which it is based, shall be closed. Done this day, December 27, 2000.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

Attn: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826