ALJDEC

99F-M0617-ROC · Registrar of Contractors · 1999-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 1999 at 9:00 a.m. APPEARANCES: Appearing at the hearing were Milly Gregory, the Complainant; Dean Martin, her witness; Erick Juergens, Respondent’s qualifying party; and James Walsh, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. On or about June 22, 1998, Complainant and Respondent contracted for Respondent to remodel Complainant’s residence to add a garage, cover a patio, construct a pantry and storage room, and to pour concrete in the patio and backyard areas. The contract was for $32,906.97 with $4,060.97 still unpaid as of the time of the hearing. 2. On November 17, 1998, the Registrar of Contractors received a complaint from Complainant listing 17 items with which she was unsatisfied. Another items were later added making the items 29 in number as of the date of the inspector’s visit to the site on January 29, 1999. 3. Upon inspection of the site, Inspector James Walsh issued a Corrective Work Order requesting that Respondent correct some of the items on the list and calling for no corrective action on other items. On August 12, 1999, Mr. Walsh returned to the site for a Pre-hearing Inspection and found that all of the items on which he had requested corrective work had been completed to his satisfaction. Complainant disagreed with the inspector and requested a hearing in the matter. As of the time of hearing, Complainant no longer took issue with items 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 23. However, she did dispute the inspector’s Corrective Work Order and Respondent’s quality of work on the remaining items. 4. Items 1 and 2 of the complaint state that the roof which Respondent constructed is not per plans and not satisfactory. Inspector Walsh found no action necessary on the roof. The reason given at hearing for Inspector Walsh’s finding was that the county inspector had approved the roof. He argued at hearing that it was the county’s jurisdiction as to whether the roof conformed to plans or was dangerous. While Inspector Walsh admitted that inspectors from the Registrar of Contractors do often investigate complaints regarding failure to follow plans, he could not explain why he would do so in other cases and not in this one. 5. Complainant argued that the roof line was not in accordance with the rough plans she had sketched for her new roof. Respondent argued that the roof which was on the plans had been built for Complainant but that she had then stated that she wanted shingles to match the rest of the house without reshingling the whole roof. Respondent testified that he then rebuilt the roof, informing Complainant that it would look different and taking her to a neighbor’s home to show her what it would look like prior to making the change. Respondent also pointed out that Complainant had wanted the roof line to be even from one side of the patio to the other but that this was impossible as the two sides of the roof were not even with each other. Thus, Complainant’s plans could not be carried out as written. 6. Items 3 through 8 of Complainant’s complaint state that, at the various places where concrete had been poured, the finish was poor and there were cracks in it. Inspector Walsh testified that he had found the concrete cracks to be within minimum workmanship standards in all areas. Complainant’s witness agreed that the cracks were all within standard but thought that the finish was poor. Respondent testified that Complainant had specifically requested that the finish on the concrete be a “heavy broom finish” because Complainant was concerned that her husband might slip and fall. 7. Item 9 of the complaint states that the water main was left on the interior of the house with a “fake” water main installed on the exterior wall. Inspector Walsh testified that the shut-off valve for the water was accessible and “county approved”. Respondent stated that the shut-off valve had been agreed to and that the line from the water meter at the back property line shuts off all water to the property while the “fake” water main is a valve that was installed as a courtesy to Complainant to allow her to shut off water to the back yard without interrupting the water service to the house, if needed. 8. Item 20 of the complaint mentions a wet area in the yard. Inspector Walsh observed no wet area where the complaint indicated and Respondent testified that there were no water lines near the area where the wet spot was complained of. 9. Item 21 of the complaint stated that the security lights installed on the house “only come on when you stand under them”. The inspector’s Corrective Work Order requested Respondent to adjust position of the eye for the security lights. He was unable to observe how they worked since he did his inspection during the day. Respondent testified that the electric eye needs to be adjusted at night, that he made an adjustment and told Complainant to call him if it still wasn’t right and that he never received such a call. 10. Item 22 of the complaint states that the “back yard dawn to dusk lights do not come on…” Inspector Walsh’s Corrective Work Order requested that Respondent replace the bulbs which he stated that he did. Respondent also stated that he checked the wiring for shorts and found none. He stated that he told Complainant to call if there were more problems with the lights and didn’t receive a call. 11. Item 24 of the complaint states “door going from kitchen to pantry it just does not look like it was put in to look right ??” Inspector Walsh found that the door had been set back due to the thickness of the wall but that it required no corrective work. Complainant stated that the moulding had been left off the inside of the wall. Respondent stated that the moulding was replaced when the wall was put in but that reframing of the door was not contracted. 12. Items 25 and 26 of the complaint state, “Where roof was connected to house does not appear to be constructed right,” and “Is there enough slope that it would not cause future problems?” Inspector Walsh found no action necessary on these items for the same reason as Item I regarding the county’s inspection of the roof. Respondent gave his testimony regarding the changes to the roof and Complainant’s approval of it. 13. Item 27 of the complaint states, “Outer row of shingles are not tabbed down.” Inspector Walsh found the row of shingles to fall within minimum workmanship standards. There was no evidence presented to show that they should have been installed differently. 14. Item 28 of the complaint states, “Some shingles on low slope area are not self sealing type also are put on crooked.” Inspector Walsh testified that the shingles were self-sealing because they are all manufactured that way. He did not observe that they were crooked. Witness Dean Martin testified that he thought that he’d observed that there was a bump in the shingling of the roof. Respondent testified that this bump was due to the fact that Complainant had three layers of shingles on her existing roof and that the height variation was between the three-layered roof to the new one-layered roof. Witness Martin also thought that there was a poundage difference between the existing shingles and the new shingles. However, Respondent testified that the poundage used on the existing roof was no longer manufactured and they had had to use the poundage which came closest. 15. Item 29 of the complaint states, “Materials used are rusting such as hinges and iron bars at window.” Inspector Walsh testified that he’d observed that the window had been repainted. Complainant stated that the window was rusting again. 16. Item 30 of the complaint states, “If possible would like all work done to be looked at.” This item was not specifically mentioned at hearing. 17. Complainant also stated at hearing that she felt that the concrete was not poured in the right places in her back yard. However, Complainant could provide no plans to show where the concrete was supposed to have been. CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4) and 32-1156. 2. The Citation and Complaint issued in this matter cites potential violations of A.R.S. §32-1154(A)(3), (7), and (23) and A.A.C. R4-9-108. 3. A.R.S. §32-1154(A)(3) prohibits licensed contractors from “[v]iolation of any rule adopted by the registrar”. 4. A.R.S. §32-1154(A)(7) prohibits licensed contractors from “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. A.R.S. §32-1154(A)(23) prohibits licensed contractors from “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar…” 6. A.A.C. R4-9-108 provides, in pertinent part, “[a]ll work shall be performed in a professional and workmanlike manner”, and “shall be performed in accordance with any applicable building codes a professional industry standards”. 7. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg at al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 8. In this case, Complainant has not established by a preponderance of the evidence that Respondent failed to take corrective measures of his work when ordered to do so by the Corrective Work Order. 9. Regarding Complainant’s complaint about the construction of the roof not matching the plans, Complainant has failed to show that the plans she presented were detailed enough to be possible to build as stated. Further, Complainant’s own insistence on changing the shingles and her agreement to the required changes indicates that she herself abandoned her plans. More importantly, the fact that Respondent tore the roof down and rebuilt it in order to conform to Complainant’s demands shows that he complied with Complainant’s wishes rather than deviating from the plan on his own. 10. The Complainant has also failed to establish that the shingling on the roof, the concrete, the water shut-off valve, the plumbing in the back yard, the pantry door or the outdoor lighting were done inappropriately. Complainant has established that the iron bars at the garage window and laundry room have rust on them and need repainting again and that the outdoor motion detectors need to be adjusted at night. 11. Complainant has stated that she does not wish Respondent to do the work if it is ordered but has failed to establish sufficient reason for such a request. 12. Complainant has also admitted that she has not paid $4,060.97 which is still owed to Respondent. While not constituting a defense to any sufficiently proven workmanship deficiencies, the fact that a substantial amount of Respondent’s agreed contract price has not been paid may properly be considered when determining reasonable conditions relating to the reduction of elimination of any otherwise appropriate disciplinary penalties. Under the circumstances, it would be fair and equitable to require payment by Complainant of the remainder of the contract price prior to Respondent’s performance of the corrective work found necessary herein. Such payment should be fully credited against the obligation of Complainant to Respondent.

RECOMMENDATION

In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class B license be temporarily and actively suspended until the Registrar receives proof that Respondent has corrected the paint on the iron bars at the garage and laundry windows and adjusted the motion detector lights on the outside of the house. It is further recommended that Respondent’s obligation to perform the aforesaid corrective work should be expressly conditional upon the prior receipt by Respondent from Complainant of the payment or tender of the sum of $4,060.97, such amount to be paid or tendered within 25 days of mailing of the Registrar’s Order (ten days prior to the effective date of the Order). If Complainant fails to timely make said payment, or if, after receiving said payment, Respondent appropriately accomplishes the above required corrective work on or before the date on which the active license suspension would otherwise have been imposed, then the license suspension should not take place, and the entire Citation and Complain in this case should be closed. THIS ORDER SHOULD BE SELF-OPERATIVE WITH RESPECT TO THE DISCIPLINARY SANCTIONS IMPOSED. It should be the responsibility of the Respondent to file with the Registrar of Contractors’ office, on or before the effective date of the Order, written confirmation that Respondent has properly and completely complied with the requirements of the Order or that Complainant has failed to make the advance payment set forth above. Done this day, August 24, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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 ___________________________

-----------------------

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