ALJDEC

99F-M1013-ROC · Registrar of Contractors · 1999-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 1999 APPEARANCES: Bruce Martin, Complainant, in his own behalf Art Thruston, General Manager, on behalf of the corporate Respondent, Homes Unlimited, Inc. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ FINDINGS OF FACT The Respondent built the Complainant’s home in Mesa, Arizona. After moving into the home in December, 1998, the Complainant submitted a number of punch lists to the Respondent who corrected some of listed items. On February 23, 1999, the Complainant filed his complaint with the Registrar of Contractors (Registrar), alleging several items were still in need of correction. On March 19, 1999, Inspector James Walsh (Walsh) of the Registrar’s Office performed an inspection at the Complainant’s home. On March 22, 1999, Walsh issued a Corrective Work Order (CWO), which required the Respondent to: Caulk kitchen molding at the countertop; Correct the patio cable outlet; Repair holes in the stucco at exterior stairwell; Correct lock sets on doors to the patio area; Paint trim on guest bedroom closet door; Correct office pocket door; Correct guest bath pocket door and casing. On April 19, 1999, the Complainant sent a letter to Walsh stating that the corrective work done by the Respondent was incomplete and required painting. Attached to the letter was a punch list of 18 items which had not been presented as part of the original complaint and were therefore not inspected by Walsh. A copy of this list was sent to the Respondent who was aware that the Complainant had added the items to his complaint. The Registrar’s Citation and Complaint was issued on May 19, 1999. Although Walsh did not inspect the supplemental list of items presented by the Complainant, he was able to examine photographs depicting many of the complained of conditions and offered testimony based on his examination of those photographs. Based on the most credible evidence, the following items from the supplemental list of April 19, 1999, are determined to be of unacceptable workmanship and in need of corrective action: The molding at the kitchen countertop as depicted in Exhibit 1 needs painting. The caulking of the molding which was part of the original CWO is satisfactory. The patio cable outlet as depicted in Exhibit 1 has been corrected but the correction needs to be painted to match the rest of the wall. This constitutes a failure to appropriately correct item (5)(B) above, as required by the CWO. The wood holding the lock sets on the patio doors of Exhibits 2 and 3 require fill in of the marred areas and matching paint. The locks are to be properly aligned so the doors will close and lock as designed. This issue shows a failure to properly correct the item listed in paragraph (5)(D) above, as required by the CWO. The pocket door for the office as depicted in Exhibit 4, requires the installation of a handle. This shows a failure to satisfactorily correct the item listed in paragraph (5)(F) above, as required by the CWO. The pocket door into the guest bathroom as depicted in Exhibit 5 requires the installation of a handle. There is no evidence which would allow for a determination of whether the makeshift wood insert used to fill in the area which was cut too large for the handle is adequate to support and otherwise hold the handle. The Respondent is responsible to ensure that the handle will withstand normal use. The condition of the missing grout where the tile meets the wood door frame in Exhibit 6 needs to be corrected. The indentation in the window woodwork in Exhibit 7, upper left photograph, needs correction. The patio ceiling depicted in Exhibit 9 needs correction. Door hinges require cleaning and door frames, as depicted in Exhibit 10, require painting. The patio door casings depicted in Exhibit 11 require proper caulking and painting. There was no physical evidence presented to determine the variation in shading of the interior paint. Oral testimony did not sufficiently convey the color variation or deviation alleged in the interior of the house. The testimonial evidence did show that mistakes were made in painting the interior of the home initially, as well as after making corrections, especially the pocket door corrections. Taken in its entirety, the evidence shows the interior paint needs to be corrected for uniformity and to conform to the original paint specifications as to what areas are to be flat and what areas are semi gloss. The requirement to correct interior painting includes cleaning the shelves where dirt was painted over resulting in painted “gritty” surfaces, and properly painting those shelves. Numerous windows and window frames have excess paint on them which is unacceptable and needs to be cleaned up or removed. Paint is required in the area of the stucco cracks shown in Exhibit 15. The evidence did not establish that the cracks exceeded a specified standard. Loose and falling roof tiles need to be properly fastened and the missing portion of the bird stop as depicted in Exhibit 16 needs to be installed. Exhibit 17, top depicts the crack in the concrete radius which needs correction. The crack across the driveway, bottom photo was not proven to exceed minimum standards. Some of the matters raised at the hearing by the Complainant were not the subject of the CWO or the April 19, 1999 supplemental list (Exhibit 11 window caulking and/or painting). Such matters cannot be raised for the first time at the hearing. Other matters were not satisfactorily proven (excessive stucco cracks and driveway crack, scratches in the marble countertop). Matters which have not been specifically mentioned in this Recommended Decision, have, by implication, not been found to constitute violations under any of the cited statutory provisions. CONCLUSIONS OF LAW The Citation and Complaint allege violation of A.R.S.§32-1154(A)(3), violation of any rule, specifically AAC R4-9-108 workmanship standards, (A)(7) a wrongful or fraudulent act resulting in substantial injury and (A)(23) failure to take appropriate corrective action. The facts as set forth above establish that the Respondent failed to do the work specified in paragraph (9) (A-O), above, in an acceptable manner. This is a violation of A.A.C. R4-9-108 and A.R.S. §32-1154(A)(3). Although the Respondent addressed items set forth in the CWO, the fact remains that a correction which creates another problem is not an appropriate correction. This is the case with the patio cable outlet, paragraph (9)(B) above, as well as items mentioned in paragraph (9)(C) and (D) above. Failing to properly correct is a failure to take appropriate corrective action, and constitutes a violation of A.R.S. §32-1154(A)(23). The facts of the case do not warrant a finding of a violation of A.R.S. §32- 1154(A)(7). The Complainant was out of town for an extended period of time prior to the hearing and the communication between the parties has become contentious and strained on both sides. The parties are advised that it is in their mutual best interest to cooperate in carrying out any Order issued by the Registrar. The Respondent is apprised that corrective work done may well cause a new two year statute of limitations to commence with respect to jurisdiction by the Registrar, Op. Atty. Gen. No. I79-119. RECOMMENDED ORDER In view of the foregoing: IT IS RECOMMENDED, commencing on the effective date of the Order entered in this matter, that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the items as specified in paragraph (9)(A) through(9)(O), of the Findings of Fact ; IT IS FURTHER RECOMMENDED that the effective date of the Order be set sometime after mid-September, 1999, because it is anticipated the Complainant will be out of town through August, 1999; IT IS FURTHER RECOMMENDED that the Complainant make the premises reasonably and timely available to the Respondent for the performance of the corrective work which may be required by the Order of the Registrar; IT IS FURTHER RECOMMENDED that if the Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, August 24, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of August, 1999, to:

Michael P. Goldwater, Director Registrar of Contractors 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