ALJDEC

99F-M1338-ROC · Registrar of Contractors · 2000-02-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on February 1, 2000, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Chad Fisher, Pro Se. For Respondent: Jennings, Haug & Cunningham, L.L.P. by James L. Csontos, Esq., Phoenix.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Pursuant to a purchase contract, Complainant purchased a home to be constructed in Gilbert, Arizona, by the Respondent. Prior to the closing of escrow when the construction of the home had been allegedly completed, the relationship between Complainants and Respondent had reached a level of animosity that made it exceptionally difficult for them to work together in order to cooperatively arrive at a consensus in developing a punchlist for incomplete work or work in need of repair. A punchlist for such work was not developed either prior to or after the closing of escrow. Respondent took the position that the home was completed as of the date of the closing of escrow and did not initiate or otherwise attempt to make contact with Complainants for the purpose of developing and attending to a reasonable punchlist. After arriving at a level of frustration (partly derived from their own somewhat intractable positions) due to alleged corrections and repairs not being properly attended to by Respondent, Complainants’ filed the instant complaint. As a result of the complaint being filed in this matter, a jobsite inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter (“CWO”) being sent to Respondent requiring that certain corrective or remedial work to be performed within a stated period of time. The complaint with an addendum listed in excess of 125 items alleged to be in need of repair, correction or completion by Respondent. The CWO resulted in a list containing 103 items plus an additional 22 items from the addendum to the complaint. The CWO was issued on August 24, 1999. The CWO was not complied with in the time frame set forth therein (i.e., 15 days), notwithstanding Respondent states it was the first time a list of such items was brought to his attention. Respondent represented and agreed that the following numbered items enumerated on the CWO have been or are in the process of being completed: complaint items 4, 13, 17, 23, 29, 36, 39, 40, 42, 57, 73, 93, 95 and 103; and, addendum items 11, 15 and 21. Complainants have voluntarily withdrawn their complaint regarding the following numbered items enumerated in the CWO: complaint items 31 and 72; addendum items 14, 17 and 18. The weight and sufficiency of all the evidence of record supports the finding that the following alleged construction deficiencies are not attributable to the work of Respondent:

CWO complaint items: 6. The evidence is insufficient to establish that Respondent was responsible for the gate latch being welded and not latching. 7. The stepped wall was constructed by others not related to this project, however, any issue concerning the stucco application is reserved for a later inspection and repair as may be required. 71. The cable box cover is not flush to the wall due to work performed by others not within the control of Respondent. 78. The service panel was apparently constructed according to approved plans and cannot be located elsewhere. While this location may appear unsightly to Complainants, Respondent has satisfied any obligation as to its present location. Complainants are free to decorate this cover as they may chose. Addendum items: 2. Complainants maintain the ponding on the roof deck exceeds ½ inch in the areas measured. However, it appears from the evidence offered that the measurements were taken immediately upon a flooding test performed only by Complainants and not verified by any independent evidence or testimony. Respondent presented evidence that establishes the average depressions where water could pond to be not more than ¼ of an inch. The workmanship standards adhered to by the Registrar of Contractors state that minor ponding is acceptable (up to ½” in small areas no more that 1/3 of a span) provided the roof becomes dry within 48 hours. The preponderance of evidence supports a finding that the roof deck in question complies with minimum workmanship standards. Complainants have failed to establish a valid claim on this item.

22. The reveal surrounding the fireplace opening is constructed within industry standards so as to accept the installation of a fireplace mantle and marble or other material for the side facings. The fact Complainants have chosen to install a fireplace at a later date does not mean the wall board at the location in question must meet finished standards as if no fireplace was contemplated. The weight and sufficiency of the evidence of record does support a finding that the following construction deficiencies are attributable to the work of Respondent: Complaint Items: 1. The evidence is clear that the solid core interior doors were saw cut on the bottom of each in order to fit the doors within the door frames. This saw cutting resulted in chips and other deformities that require correction and repair. Respondent is to properly fill with appropriate material, sand, stain/paint and finish all such door bottoms to meet acceptable minimum workmanship standards. 35. The pantry double doors do not close to a flush condition and evidence a misalignment that is unacceptable. Respondent offered into evidence a copy of the limited warranty of manufacturer of these doors asserting that the misaligned condition was due to a warpage that was not in excess of 3/8 inch. The evidence does not reveal a warped door but ones that are not aligned properly so as to close to a flush condition. Respondent is to properly align, adjust or replace these doors to perform according to industry standards. 54. The gas fireplace installed does not stay lighted. It is undisputed that this is a manufacturers warranty problem which Respondent should coordinate in order to provide Complainants a working gas fireplace in keeping with contractual obligations. 59. The evidence suggests that cornerbead “at the high wall at entry” is wavy or bowed. Respondent is to inspect this condition, make a reasonable and responsible determination if such a condition exists and, if so, to make any necessary repairs or corrections. 82. Respondent has agreed to repair the lines appearing in the cornerbead at the stairwell. 94c. Regardless of the explanation, the pocket door when in a closed open position hangs unevenly with the bottom protruding and the top recessed. Respondent’s assertion the door was installed level in a closed position fails to establish that the overall installation meets acceptable minimum standards. The pocket door should not be exposed when in the fully opened position. Respondent is to correct this condition in the least destructive manner as possible and after doing so to put the surrounding area back into the same condition as existed prior to effecting such repairs. 24. All other enumerated items of the complaint, presented at the instant hearing, were either corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Citation and Complaint alleges that Respondent: (a) violated A.R.S. §32-1154 A (7), (23) and (3), namely Rule R4-9-108. These provisions provide for disciplinary action to be taken against a licensee for:

7) The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

(23) Failure 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.

(3) Violation of any rule adopted by the registrar, namely Rule R4-9-108 which details and establishes the workmanship and professional standards to be used in determining whether a violation of this subsection has occurred.

Under the circumstances of this case, given the poor relationship between the parties, a holding that Respondent is in violation of A.R.S. §32- 1154(A)(7) and (23) in not supported by the evidence. Complainants are equally at fault in failing to resolve this matter in a fair and responsible manner and, as a result, contributed to the delays attendant to the completion of the punchlist. This is not, however, to be construed as condoning Respondent’s conduct in failing to pursue a proper and final completion of this home. The fact that a contractor is confronted by difficult customers does not obviate the responsibility to ensure all legal obligations have been meet. By a preponderance of the evidence, it has been established that Respondent is in violation of A.R.S. §32-1154(A)(3), namely A.A.C. R4-9-108, for failing to properly construct and install the items found deficient in Finding of Fact No. 23.

RECOMMENDED ORDED 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 Respondent shall be suspended until the Registrar of Contractors receives credible written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact No. 9 and 23. It is further recommended that if Respondent accomplishes the above described corrective and remedial work on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place. ENTERED this day, February 4, 2000.

______________________________________ Neal H. Jordan 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 ___________________________

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