ALJDEC

99F-3617-ROC · Registrar of Contractors · 2000-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2000 APPEARANCES: J. Scott Burns, Esq. (of Burns and Burns, P.C.) appeared on behalf of Complainants Alvan and Sara Adams. Respondent appeared through its owner and qualifying party, Thomas W. Reardon, II. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The issue presented by this matter is whether Respondent Thomas W. Reardon, II, doing business as TW Reardon Contracting, is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent Thomas W. Reardon, II, dba TW Reardon Contracting (“TW Reardon”), is the holder of a Class B license (No. 098134) issued by the Registrar of Contractors (“ROC”). Thomas W. Reardon, II is TW Reardon’s qualifying party. On April 10, 1997, TW Reardon entered into a written contract with Complainants Alvan and Sara Adams for the construction of a custom home in Paradise Valley, Arizona. TW Reardon commenced construction in April 1997, and substantially completed the home in June 1998. On June 28, 1999, the Adams’ filed a complaint against TW Reardon with the ROC. The Adams’ alleged (i) “Certain work not commenced,” (ii) “Uncompleted/ unaddressed punch list,” and (iii) “Untimely response on warranty work.” ROC Inspector Bob Mechsner investigated the Adams’ complaint. On August 3, 1999, Inspector Mechsner conducted a jobsite inspection at the Adams’ residence. Mr. Adams, Mrs. Adams and Mr. Reardon were present for that inspection. On August 6, 1999, the ROC, through Inspector Mechsner, issued a Corrective Work Order (“CWO”) under which TW Reardon was given 15 days to correct a number of deficiencies at the Adams’ residence. The original list of alleged construction defects submitted to the ROC contained 49 separate items. As of the hearing date, that number had been reduced to 26 items as follows (for consistency, the items are numbered as they appear in the CWO): “1. PLAN CALLED FOR 2” WATER SUPPLY TO HOME. CONTRACTOR SHALL INSURE THAT SIZE IS ADEQUATE AND APPROVED BY ARCHITECT IF LESS THAN 2”. * * * * * 6. BUTCHER BLOCK HAS SPLITS AND SOME VERTICAL DISPLACEMENT. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. 7. SEVERAL FRENCH DOORS THROUGHOUT THE HOME REQUIRE ADJUSTMENT. DOORS SHOULD HAVE UNIFORM GAP AROUND PERIMETER OF DOORS, AND HARDWARE IS TO OPERATE PER MANUFACTURER’S SPECIFICATIONS. 8. GUEST HOUSE ENTRY DOOR WARPED. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. 9. MASTER SHOWER MARBLE TILE CRACKED IN SEVERAL LOCATIONS. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. * * * * * 11. WALL GRATES NOT INSTALLED. CONTRACTOR SHALL PROVIDE AND INSTALL PER PLAN AND CONTRACT. 12. SLEEVES FOR VOLLEYBALL AND BASKETBALL AT POOL WERE NOT INSTALLED. CONTRACTOR SHALL INSTALL PER PLAN AND CONTRACT. 13. WOOD GATES HAVE EXPOSED SCREW ENDS, ONE TWISTED BOARD ON NORTH GATE, AND SOME LOOSE HARDWARE. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. CLOSERS OPERATED AT TIME OF JOBSITE MEETING. 14. CONTRACTOR SHALL CLEAN OVERSPRAY FROM DOOR HARDWARE THROUGHOUT HOME. 15. CONTRACTOR SHALL INSURE PROPER FUNCTION OF SHUTTERS THROUGHOUT HOME * * * * * 18. INTERIOR PAINT: SEVERAL AREAS HAVE FLAT SPOTS OVER SEMIGLOSS. EXTERIOR PAINT: SEVERAL AREAS ARE DELAMINATING, PEELING OR HAVE INADEQUATE COVERAGE. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS 19. POCKET DOORS: SEVERAL DO NOT STOP FLUSH WITH JAMB. FAMILY ROOM DOOR HAS SCRAPED FACE. LIVING ROOM DOORS STUCK IN PLACE. CONTRACTOR SHALL CORRECT AND INSURE THAT POCKET DOORS THROUGHOUT HOME FUNCTION PROPERLY. CONTRACTOR SHALL CORRECT GAPS IN MOLDING MITERS. * * * * * 21. PRESSURE REDUCERS NOT NECESSARY. NO ACTION REQUIRED BY CONTRACTOR. 22. EMILY’S BATH MIRROR HAS GAPS AT SIDE. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. 23. PERGOLA COLUMNS: COLUMNS LOOSE, HAVE NAILS EXPOSED, SPLITS AT CORNERS, AND GOUGES AT ROUTED EDGE. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. * * * * * 29. STUCCO PERIMETER WALL: STAIRSTEPPED CRACKS AND OTHER HORIZONTAL CRACKS REQUIRE REPAIR. MORTAR LINES AND EFFLORESCENCE SHOULD BE CORRECTED BY PROPER PAINTING. CONTRACTOR SHALL CORRECT THESE CONDITIONS BY APPROPRIATE MEANS. 30. CONDUIT EXPOSED ABOVE GROUND ON SOUTH SIDE OF HOUSE. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS.[1] * * * * * 32. DRYWALL PATCH IN GARAGE REQUIRES PAINT. CONTRACTOR SHALL CORRECT, PER JOBSITE AGREEMENT. * * * * * 34. FAN SWITCHES WITH LIGHTS NOT PER CONTRACT. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS * * * * * 36. DISHWASHER HAS ROUGH CUT AT BOTTOM. CONTRACTOR SHALL PROVIDE SOME TYPE OF COVER TO CORRECT UNSIGHTLY CONDITION. * * * * * 38. CONTRACTOR SHALL INSURE THAT CEILING LIGHTS IN STUDY ARE PER ARCHITECT AND HOMEOWNER’S APPROVAL IF DIFFERENT THAN PLAN. 39. BRICK BASES ON COLUMNS AT MASTER BEDROOM ARE UNSIGHTLY AND INCONSISTENT WITH OTHER COLUMNS. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS. 40. STRIKER HOLES APPEAR ROUGH IN SOME LOCATIONS. CONTRACTOR SHALL PAINT, PER JOBSITE AGREEMENT. 41. CONTRACTOR SHALL PROVIDE AND INSTALL SCREENS PER PLAN AND CONTRACT. 42. GUEST HOUSE PANELS ON DISHWASHER AND COMPACTOR ARE PER INDUSTRY NORM. NO ACTION REQUIRED BY CONTRACTOR. * * * * * 46. DRYWALL HAS NAIL POPS IN A FEW LOCATIONS. CONTRACTOR SHALL CORRECT BY APPROPRIATE MEANS.”

At the hearing, the Administrative Law Judge allowed the Adams to amend their complaint to include the following additional items: (a) While repairing the mirror as required under CWO #22, Mr. Reardon damaged three tiles which require repair; and (b) a trim piece located on a rafter above the backyard patio barbecue needs to be re-set. At the hearing, Mr. Reardon agreed that items 9, 14, 32, 36, 39, 40 and 46 above still require correction, and agreed to make those corrections. In addition, Mr. Reardon agreed that the three broken tiles (amendment item “(a)”) require correction, and agreed to make that correction. With regard to the remaining items on the CWO, the evidence at hearing was that Mr. Reardon made some effort to comply with the CWO after it had been issued by the ROC. However, the quality of work and the speed by which it was being accomplished was not acceptable to the Adams, and, by letter dated August 30, 1999 to Inspector Mechsner, the Adams requested an administrative hearing. On or about September 5, 1999, almost one month after the date of the CWO and almost two weeks after TW Reardon was supposed to have completed the corrective work, Mr. Adams drafted a letter to Mr. Reardon expressing the Adams’ dissatisfaction with Mr. Reardon’s efforts to address the CWO and demanding that Mr. Reardon “cease [his] attempts to complete any further work.” [Exhibit 30] Mr. Adams mailed this letter to Mr. Reardon (with a copy to the ROC) on September 23, 1999. Mr. Reardon testified at the hearing that he understood Mr. Adams’ letter as a request that he not return to the Adams’ residence to conduct any further work. On October 1, 1999, the ROC issued a Citation and Complaint against TW Reardon, charging violations of A.R.S. § 32-1154(A)(7) (wrongful act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). On January 20, 2000, Inspector Mechsner conducted a pre-hearing inspection at the Adams’ residence. Inspector Mechsner testified that on January 19, 2000, he left a message on Mr. Reardon’s telephone answering service informing Mr. Reardon of the pre-hearing inspection. Mr. Reardon denied receiving that message, and was not present for the pre-hearing inspection. The Adams presented their case through the testimony of Alvan Adams, Sara Adams and Inspector Mechsner, and through 35 exhibits. TW Reardon presented its defense through the testimony of Mr. Reardon and through 4 exhibits. The parties presented evidence on all 28 items which remained in dispute as of the hearing date (the 26 CWO items plus the 2 items allowed by amendment), and the Administrative Law Judge will address each item in turn, excluding the seven items set forth in Finding of Fact No. 9 above which Mr. Reardon has already agreed require correction.

THE WATER SUPPLY (CWO ##1 & 21)

The Adams’ plans call out a 2” water supply, and require architect approval for installation of a line smaller than 2”. Although the evidence was unclear as to the size of the supply line actually installed, the evidence was uncontradicted that TW Reardon installed a supply line smaller than 2” and did so without obtaining architect approval. The Adams’ plans also call out pressure reducers for the water supply. The evidence was uncontradicted that TW Reardon did not install pressure reducers. The evidence at hearing was mixed regarding the actual water pressure at the Adams’ residence. Mr. Adams testified to swings in pressure going from too much to too little. Mr. Adams also testified that in August, 1999, a plumber who TW Reardon had sent to the house to make repairs reported that the water pressure was “very high,” approximately 100 psi. Inspector Mechsner testified that if the pressure is in fact so high, it may cause damage to the Adams’ plumbing system. The evidence being as stated above, several factual inferences may be made. If the water pressure is high (perhaps too high), as reported by the plumber in August 1999, then TW Reardon’s installation of a supply line less than 2”, although a deviation from the Adams’ plans, is not a significant deviation in that it has had no apparent impact on delivery of water to the Adams’ residence at adequate pressure. However, it also follows that given the high pressure, TW Reardon’s failure to have installed pressure reducers constitutes a failure to meet minimum workmanship standards. Inspector Mechsner testified that the ROC’s main concern regarding this item is that the water supply, as built, must be adequate. At the hearing, the parties discussed having the water pressure tested as a prerequisite to further action.

THE BUTCHER BLOCK (CWO #6)

The Adams’ plans call out a butcher block top for the kitchen island. Mrs. Adams testified that she requested a “natural” (unsealed) butcher block. However, the butcher block which TW Reardon installed was of the “sealed” variety (i.e., the factory had applied a lacquer finish to the block). To meet Mrs. Adams’ request for a natural butcher block, TW Reardon sanded off the factory finish that had been applied to the top of the block. However, the bottom of the block remained sealed. Because of this imbalance between the sealed and unsealed surfaces, the block experienced excessive expansion and contraction, and split open along several of the seams. Mr. Reardon asserted that he has repaired the butcher block three times, and attributed the splitting to the Adams’ alleged failure to have properly maintained the butcher block (a natural butcher block requires periodic applications of oil to remain supple). The Administrative Law Judge finds that the butcher block’s deficiencies are attributable to TW Reardon’s failure to have installed a natural butcher block, and to TW Reardon’s attempt to remedy that failure by improperly modifying the factory-seal by sanding the top of the block. As such, TW Reardon’s work on the butcher block does not meet minimum workmanship standards. THE FRENCH DOORS (CWO #7) The Adams’ plans call out a number of french doors. The Adams complained that the doors had not been hung properly and that the hardware did not operate properly. Inspector Mechsner testified that a number of the french doors did not meet workmanship standards due to non-uniform gaps between the doors and the door jambs, and because the hardware did not operate in accordance with the manufacturer’s specifications. Mrs. Adams testified that the doors employ a three-point locking system which operates differently on different doors and which functions properly on only one of the doors. The Administrative Law Judge finds that the french doors do not meet minimum workmanship standards and need to be corrected. The doors should be re-hung so as to eliminate the non-uniform gaps. The door hardware should be adjusted so as to ensure proper and consistent operation from door to door. THE GUEST HOUSE ENTRY DOOR (CWO #8) The entry door to the Adams’ guest house is warped. Mr. Reardon attributed this condition to the fact that the door is constructed of pine, a material which in Mr. Reardon’s opinion is not stable enough to withstand the Arizona heat. Mr. Reardon testified that he discussed using pine with the Adams during the bidding process (i.e., before construction began), and specifically told the Adams he was opposed to doing so. The Administrative Law Judge finds that even assuming Mr. Reardon stated his opposition to using the pine door, he agreed to install it and therefore bears responsibility for its failure to meet minimum workmanship standards.[2] THE CULVERT GRATE (CWO #11) The Adams’ plans call out a grate to cover a culvert that runs between the Adams’ property and a neighboring property. By agreement between the parties, TW Reardon installed the grate at the far end of the culvert (i.e., the end closer to the neighboring property). The Adams acknowledged that the culvert grate has been installed but complained the grate is not removable. The Administrative Law Judge finds that although the culvert grate is not hinged, as the Adams argued it should have been, it is removable and therefore meets the agreement between the parties. The Adams also suggested that TW Reardon should be responsible for installing a second grate on the culvert, i.e., on the end adjacent to their property. The Administrative Law Judge finds that TW Reardon complied with its obligations to install a single culvert grate, and should not be required to install a second grate. THE POOL SLEEVES (CWO #12) By agreement between the parties, the Adams’ pool is supposed to have basketball and volleyball sleeves installed in the decking. The evidence was that although TW Reardon provided spaces for the sleeves next to the pool’s bond beam, the pool subcontractor failed to install the sleeves when it laid the pool’s flagstone decking. Responsibility for installation of the pool sleeves ultimately lies with TW Reardon, and its failure to install those sleeves, either by itself or through a subcontractor, constitutes a wrongful act which substantially injured the Adams. THE WOOD GATE (CWO #13) The Adams’ alleged that the wood gate on their property was supposed to match the wood gate on their neighbors’ property, and that TW Reardon failed to meet this requirement. Inspector Mechsner viewed the neighbors’ gate and described it as looking like it had been built by an expert carpenter using exterior, kiln- dried Douglas fir. Inspector Mechsner described the Adams’ gate, in contrast, as having been built with construction grade lumber that is warping and twisting, and from which screws are protruding. Inspector Mechsner testified the Adams’ gate is not a “finished” item. Mr. Reardon confirmed TW Reardon’s agreement to construct a gate for the Adams which matched the neighbors’ gate, but denied it was the gate against which Inspector Mechsner made his comparison. Mr. Reardon stated the “comparison” gates were located at two other homes in the Adams’ neighborhood that TW Reardon had built, and that the Adams’ gate matched these gates. Mr. Reardon’s testimony was not contradicted, and the Administrative Law Judge finds that TW Reardon did not have an obligation to match the Adams’ gate to the gate against which Inspector Mechsner made his comparison. However, the Administrative Law Judge finds that there are deficiencies in the gate as stated above which do not meet minimum workmanship standards (i.e., the warped lumber and the protruding screws) for which TW Reardon is responsible. THE SHUTTERS (CWO #15) After the house was framed (or almost completely framed), Mrs. Adams decided that she wanted to add recessed shutters to a number of the windows. The idea was that the shutters could be folded into the walls when not in use. Mr. Reardon did not believe that Mrs. Adams’ concept could be carried out. Nonetheless, he re-framed the windows to create “pockets” for the shutters, and worked out with TW Reardon’s carpentry subcontractor a system using tri-fold shutters that would (theoretically) fold back into those pockets. The shutters have been, to put it bluntly, a disaster since their inception. None of the shutters are functioning as intended. Some can be folded back into their pockets, but then cannot be pulled back out (or can only be pulled out with great difficulty). Some do not fold completely into their pockets. Some do not close flush. Some, once folded, do not stay folded. Several are losing their hinges. Inspector Mechsner described the shutters, which he stated should “look like a piece of furniture,” as “very unfinished.” Inspector Mechsner testified that, in his opinion, the shutters suffer from a basic design failure. Mr. Reardon testified that in retrospect, he should have “just said no” to Mrs. Adams’ request, but that he wanted to accommodate his clients’ wishes. The Administrative Law Judge finds that the shutters do not meet minimum workmanship standards. Given Mr. Reardon’s misgivings, TW Reardon perhaps should have not undertaken this particular part of the project. However, having done so, it is responsible for that work. PAINT (CWO #18) The preponderance of the evidence was that two interior wall areas do not meet minimum workmanship standards for paint and require additional painting due to incomplete coats or the application of the incorrect type of paint (i.e., flat on semi-gloss). Those two areas are (i) above the entry hall table, and (ii) in the powder room above the vanity. The preponderance of the evidence was that certain of the exterior trim painting does not meet minimum workmanship standards and requires additional painting due to peeling or inadequate coverage. THE POCKET DOORS (CWO #19) The Adams’ plans call out a number of pocket doors. The preponderance of the evidence was that the majority of the pocket doors do not meet minimum workmanship standards and require correction. Several of the pocket doors do not stop flush with the door jamb. The powder room pocket door is non-operable. The family room pocket door is scratched from rubbing along the frame. Mr. Reardon attributed a number of the pocket door problems to the fact that the pocket doors are made of pine and therefore subject to warping. Mr. Reardon testified that since February 1997 he had been telling the Adams that pine doors would not work. The Administrative Law Judge finds Hearing Exhibit B, a “specification change list” offered into evidence by Mr. Reardon, to be inconsistent with his testimony. In Hearing Exhibit B, Mr. Reardon writes with respect to the interior doors: “Change interior doors from clear pine to knotty pine (small tight knots/sanded).” Mr. Reardon continues: “I will be using beams for this house that are free of heartwood and tidewater cypress for the trim. I have used redwood on homes in this area with a lindseed oil finish with disastrous results. If redwood was used I could drop the bid an additional $3,100.00, but I would be very concerned.” Exhibit B demonstrates two facts. First, Mr. Reardon had thought about and was concerned with the propriety of using certain types of wood at the Adams’ residence, and was willing and able to express that concern to the Adams. Second, Mr. Reardon was aware that pine would be used in the interior doors, and did not state any concerns with using that material. To the contrary, Mr. Reardon expressly advised the Adams on the use of one type of pine over another. Pocket doors may be, as Mr. Reardon stated, the bane of all contractors. However, having agreed to install them, TW Reardon must accept responsibility for their workmanship deficiencies. THE PERGOLA COLUMNS (CWO #23) The Adams' plans call out a pergola with columns that are constructed of redwood around an internal metal pole with a brick base. The preponderance of the evidence was that the redwood is splitting in areas, that there are unsightly nails, that there are gaps in the miters and that some of the trim pieces are of differing widths. Mr. Reardon attributed some of these deficiencies to the absence of the brick base (which he was not under contract to construct) because without this base, the columns are not securely anchored. Mr. Reardon testified that the columns will continue to suffer defects until such time as the brick bases are installed. The Administrative Law Judge finds Mr. Reardon's testimony on this point persuasive. The brick base appears to be a significant structural component of the columns and should be installed to prevent further damage to the columns. By the same token, TW Reardon, as general contractor, bears responsibility for its workmanship, and the preponderance of the evidence is that the columns suffer workmanship defects as described above which must be corrected. THE PERIMETER WALL (CWO #29) Certain portions of the Adams’ perimeter wall, which is constructed of masonry block that is stuccoed and painted, are cracking in a “stair step” pattern and showing signs of efflorescence.[3] The Administrative Law Judge finds TW Reardon responsible for these workmanship deficiencies. At the hearing, the parties discussed the possibility of the Adams receiving a “credit” for the costs TW Reardon would incur to correct this deficiency instead of having TW Reardon perform the work because the Adams are considering a paint upgrade (elastomeric) that TW Reardon would not be obligated to provide. Upon and after the entry of a final decision in this matter, the parties remain free to work out mutually acceptable arrangements on this item as well as any other item for which TW Reardon is found responsible. However, pending any such arrangements, TW Reardon has an obligation to bring the perimeter wall within minimum workmanship standards. THE EXHAUST FAN SWITCHES (CWO #34) The exhaust fans in the Adams’ bathrooms and laundry room were supposed to have lighted switches. TW Reardon did not install lighted switches, and there was a dispute as to the appropriate remedy. As it turned out, all but three of the exhaust fans were pre-wired with light fixtures, and the Adams agreed to accept these. However, the three exhaust fans that were not so pre-wired remain unlighted. The Administrative Law Judge finds that TW Reardon is responsible for correcting the lighting for the three remaining exhaust fans, either by installing light fixtures in the fans or by installing lighted switches. THE STUDY CEILING LIGHTS (CWO #38) During construction, the location of certain of the study ceiling lights was altered so as to best light the study cabinetry. The Administrative Law Judge finds that the Adams and their architect signed off on these field changes, and that TW Reardon therefore has no duty to correct the study ceiling lights. THE WINDOW SCREENS (CWO #41) Four of the Adams’ window screens do not match the color of the window frames in which they are set. The Administrative Law Judge finds that when initially ordered, the four screens were the correct color as per the Adams’ plans. The reason they do not currently match the frames is that the Adams changed the color of those frames after the screens had been ordered and delivered. On these facts, TW Reardon has no duty to correct the screens.

THE GUEST HOUSE PANELS (CWO #42)

The Adams complained that the wood panels on the dishwasher and trash compactor in the guest house do not match the guest house cabinetry. The cabinetry panels have raised molding, whereas the dishwasher and trash compactor panels have no such molding (i.e., they are flat). The Adams introduced evidence that the appliance panels in the main house match the main house cabinetry, and argue from this that the guest house panels should match the guest house cabinetry. Inspector Mechsner indicated on the CWO with respect to this item “guest house panels on dishwasher and compactor are per industry norm. No action required by contractor.” At the hearing, Inspector Mechsner backed off this position, stating that having compared the guest house appliance panels against the main house appliance panels, he could understand the Adams’ argument. Mr. Reardon testified that no specifications existed for the cabinetry fronts and that the decision as to those fronts was between the Adams and TW Reardon’s cabinetry subcontractor. The Administrative Law Judge acknowledges the Adams’ concern with respect to this item but finds that the absence of matching appliance panels in the guest house does not present a violation of minimum workmanship standards. THE BACKYARD PATIO (AMENDMENT ITEM B) Mr. Adams testified without contradiction that a trim piece located on a rafter above the backyard patio barbecue needs to be re-set. However, the Adams’ offered no further evidence regarding this item, and therefore there is no evidence upon which the Administrative Law Judge can determine whether the deficiency is attributable to faulty workmanship. For this reason, the Administrative Law Judge finds that the Adams did not meet the required burden of proof with respect to this item. CONCLUSIONS OF LAW In this proceeding, the Adams bear the burden to prove, by a preponderance of the evidence, that TW Reardon is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its October 1, 1999 Citation and Complaint. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged TW Reardon with a violation of Rule R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” In accordance with A.R.S. § 32-1154(D), the ROC may impose a civil penalty on TW Reardon not to exceed $500.00 for each violation of A.R.S. § 32-1154(A)(23). The Administrative Law Judge concludes on the facts set forth above that the Adams sustained their burden to prove that TW Reardon violated A.R.S. § 32-1154(A)(3), (A)(7) and (A)(23) as charged by the ROC in its October 1, 1999 Citation and Complaint, and that TW Reardon is therefore subject to discipline. The preponderance of the evidence was that the majority of the items about which the Adams complained did not meet minimum workmanship standards. Further, the evidence was that TW Reardon failed to correct a large number of the items listed on the CWO within the time provided by the ROC. The Administrative Law Judge concludes that TW Reardon’s failure to take appropriate corrective action within a reasonable period of time constitutes both non-compliance with written agency directives and also a wrongful act causing substantial injury to the Adams. It is no defense that Mr. Reardon construed Mr. Adams’ September 5, 1999 letter (mailed September 23) as instruction not to return to the house. By the time TW Reardon received that letter, more than six weeks had elapsed since the issuance by Mr. Mechsner of the CWO. Despite their past difficulties, the parties were cordial. The Administrative Law Judge believes that both parties share the goal of putting this matter behind them as expeditiously as possible, and are not adverse to working together to achieve that end. The hurdle was the determination, now provided herein, of what the deficiencies were and who would be responsible for correcting them. With this in mind, the Administrative Law Judge concludes that TW Reardon should be given one (and only one) more opportunity to rectify its work. TW Reardon’s corrective work obligations are as follows: h. TW Reardon shall bring within minimum industry standards, or cause to be brought within minimum industry standards, the following items: 9) the french doors (CWO #7) 10) the guest house entry door (CWO #8) 11) the wood gates (CWO #13) 12) the shutters (CWO #15) 13) interior and exterior paint (CWO #18) 14) the pocket doors (CWO #19) 15) the perimeter wall (CWO #29) 16) CWO items 9, 14, 32, 36, 39, 40 and 46, and amendment item (a) (see Finding of Fact No. 9, above) q. With regard to the water supply (CWO ##1 & 21), TW Reardon shall promptly arrange for a licensed plumber to test the water pressure at the Adams’ residence. If the pressure is excessive based on industry standards, then TW Reardon shall install pressure reducers. If the pressure is inadequate based on industry standards, then TW Reardon shall make such modifications to the water supply line, subject to approval by the Adams’ architect, as are necessary to bring the water pressure within acceptable limits. If the pressure is within industry standards, then TW Reardon shall have no further obligations with regard to the water supply. r. With regard to the butcher block (CWO #6), the evidence is that TW Reardon’s numerous repair attempts have been ineffective. Therefore, the most appropriate remedy is that TW Reardon remove the existing block and replace it with a new, unsealed block. s. With regard to the pool sleeves (CWO #12), TW Reardon shall install or cause to be installed basketball and volleyball sleeves in the flagstone decking. t. With regard to the pergola columns (CWO #23), TW Reardon shall bring the existing deficiencies within minimum workmanship standards. However, once those deficiencies have been appropriately corrected, TW Reardon shall have no further obligation for its work with respect to the pergola columns unless and until such time as the brick bases are installed by the Adams. u. With regard to the exhaust fan switches (CWO #34), TW Reardon shall, at its option, either install light fixtures in or lighted switches at the three unlighted fans. 22. TW Reardon has no further obligations regarding: w. the culvert grate (CWO #11) x. the study ceiling lights (CWO #38) y. the window screens (CWO #41) z. the guest house appliance panels (CWO #42) aa. the backyard patio (amendment item (b)) The Administrative Law Judge concludes that given the amount and types of corrective work required, TW Reardon should be given additional time beyond the effective date of the Order entered in this matter to complete that work. The Citation and Complaint issued by the Registrar of Contractors notified TW Reardon that in the event of a finding of a violation against it, TW Reardon’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 TW Reardon and said notice revealed one prior complaint that had gone to hearing and which had subsequently been closed. Therefore, TW Reardon’s prior record is deemed to be very good and is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. RECOMMENDED ORDER It is recommended that commencing thirty days after the effective date of the Order entered in this matter, TW Reardon’s Class B license be suspended until such time as the Registrar of Contractors receives written proof that TW Reardon has complied with one or both of the following alternative conditions: a. TW Reardon has accomplished the work set forth in Conclusion of Law No. 7 a. through f., inclusive, and/or b. TW Reardon has entered into other mutually acceptable arrangements with the Adams. It is further recommended that if TW Reardon accomplishes the above- identified work in a proper, workmanlike manner on or before the extended deadline date, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number 99-3617 shall be closed. For the purposes of further administrative or judicial review, the Registrar’s Order becomes effective thirty-five days after the date of entry by the Registrar.

Done this day, February 9, 2000.

______________________________________ Daniel G. Martin 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 ___________________________ ----------------------- [1] The evidence at the hearing was that this item has been appropriately corrected. Therefore, the Administrative Law Judge does not consider it.

[2] One appropriate course of action for a contractor in this type of situation would be to carefully explain to the homeowner the reasons for his opposition to a particular course of action, and if the homeowner persists, to obtain a written disclaimer from the homeowner.

[3] Efflorescence is a term used to describe the migration of mineral salts from the surrounding soil into the masonry block and then out into the stucco, making visible the masonry block mortar seams.

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