ALJDEC

99F-M1183-ROC · Registrar of Contractors · 1999-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 1999 APPEARANCES: Complainant : Michael Primiano appeared at the hearing pro se; Witness Eddie Valenzuela, Owner of Unique Carpets. Respondent : John Rasmussen, Esq., with the Mesa, Arizona law firm of Johnson, Rasmussen, Robinson & Allen, P.L.C.; Steve Lambert Owner; and, Witness Dale Robinson, Esq. Registrar of Contractors Inspector: Ron Lamp. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Respondent is an individual, Steve Rene Lambert, doing business in the state of Arizona as Lambert Custom Homes, holding a Class B license (General Residential Contractor) issued by the Registrar of Contractors.

2. Complainants and Respondent entered into a written contract (undated, but identified in other documentation as having been executed in October 1998) whereby the Respondent contractor agreed to furnish material and perform services necessary to the construction of a custom-built home in Queen Creek, Arizona. In consideration for the work performed and materials provided, Respondent and Complainant agreed upon a lump-sum contract price of $110,067.00.

3. Subsequent to work having been performed on the construction, Complainants informed Respondent in writing that Complainant did not desire that Respondent continue work on the project. (March 26, 1999 letter of Amelia Primiano)

4. The Complainants submitted a complaint to the Registrar of Contractors on March 26, 1999.

5. A job site inspection was conducted by a Registrar of Contractors Inspector on June 22, 1999, which resulted in the issuance of a “Corrective Order” on June 24, 1999. The order afforded Respondent 15 calendar days within which to make certain repairs.

6. Complainant submitted a Request for Hearing on July 9, 1999, reaffirming disconcertion over Respondent’s failure to have performed in a workmanlike manner. Therefore, the Registrar issued a Citation and Complaint against Respondent on July 20, 1999.

7. The weight and sufficiency of the evidence of record establishes that the following construction deficiencies which necessitate repair and correction are attributable to the workmanship of Respondent. For the sake of consistency, the numbered items delineated correspond to the list identified by the Registrar in the “Corrective Work Order.”

1. It is necessary that repairs be made to the drywalls; specifically, areas where the walls are “bowed out” in the bedrooms and dining room, inconsistencies in texture, visible seams, open holes created to locate recessed electrical receptacle boxes and gaps around window openings. 2. The walls have not been painted in a professional and workmanlike manner; this deficiency must be corrected. 3. Deficiencies exist in the molding throughout the home must be repaired or replaced. 4. The laminate flooring throughout the house must be repaired or replaced in a professional and workmanlike manner. 5. Any paint spills from the cabinet and trim must be removed. 6. The tub shower in the child’s bath must be corrected for all scratches and chips.

8. All other enumerated items, concerns and allegations of the complaint presented at the hearing have either been corrected, not adequately shown to be workmanship deficiencies, or matters upon which Complainant has failed to sustain the requisite burden of proof.

9. The evidence clearly establishes that the workmanship of Respondent was poor and devoid of compliance with standards in the areas of deficiency.

10. The evidence further establishes that Respondent performed plumbing work not covered by the license issued to Respondent. This fact, despite Respondent’s claim of ignorance, requires a finding that Respondent was acting on this job beyond the scope of his license.

11. Respondent’s testimony that access has been denied Respondent to make the requisite repairs has some validity but that fact is not the sole reason, as manifested by other evidence presented, for Respondent’s failure to perform.

12. Complainants appear to be asking for restitutionary relief. Complainant has failed, however, to establish that Complainant is entitled to compensation, reimbursement, indemnification or reparation for their loss, with the exception that Respondent should be required to reimburse Complainant the amount of $1,400.00 for the amount expended by Complainant to satisfy the obligation for electrical work performed and for which Respondent was required to pay pursuant to the contract between the parties.

CONCLUSIONS OF LAW

1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (7), (17) and (23) and (3); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful or fraudulent act resulting in injury to another person, namely, Respondent’s failure to perform the work for which Respondent was contractually obligated, without legal excuse or defense.

4. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (17) as charged in the Citation and Complaint. Respondent performed plumbing work, which work fell beyond the scope of Respondent’s license with the Registrar of Contractors.

5. By a preponderance of the evidence, Complainant has established that Respondent intentionally failed to comply with the directives of the “Corrective Work Order” issued by the Registrar of Contractors in violation of A.R.S ( 32-1154 (A) (23). Respondent failed to do the work for which Respondent was contractually obligated in a workmanlike manner and neglected to correct the defects as directed by the Registrar within the time afforded Respondent to make the necessary replacements or repairs.

6. By a preponderance of the evidence, taken as a whole, Complainant has established that Respondent failed to perform the work undertaken in a professional and workmanlike manner in violation of A.R.S ( 32-1154 (A) (3), namely, Rule R4-9-108.

7. Respondent’s failure to effect a repair of the deficiencies of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed. Respondent should be required to arrange for replacement and/or repair of the deficiencies outlined herein, by qualified subcontractors, to ameliorate the harm done to the Complainant homeowners, which harm is evident under all the salient facts and circumstances presented in this case.

RECOMMENDED ORDER

In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class B license be revoked on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes appropriate and effective remedial work on the deficiencies described in Findings of Fact No. 7 herein on or before the effective date of the Order, the revocation should not take effect; instead, Respondent’s Class B license should then be placed on active suspension for a period of seven days followed immediately by a period of disciplinary probation for six months. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

Set forth this 19th day of November 1999.

______________________________________ Gary B. Strickland 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 ___________________________

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