ALJDEC

99F-P0026-ROC · Registrar of Contractors · 1999-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 1999 (Show Low, Arizona)

APPEARANCES: William H. Schaeffer appeared on his own behalf; Respondent was represented by its President and Qualifying Party, Rick Slone.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This complaint involves workmanship at a house built in Show Low, Arizona for Complainant William Schaeffer by Respondent Treetop Builders, Inc. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations of the statutes governing contractors and recommending that Respondent make repairs or have its license suspended. FINDINGS OF FACT 1. In mid-1997, Respondent built a house for Complainant. The agreement between Respondent and Complainant was unusual. Complainant owned the land and verbally agreed to allow Respondent to build a house on it. Respondent usually builds spec homes. Respondent’s President and Qualifying Party Rick Slone did not want to build a custom home for Complainant. Slone verbally agreed, however, to build a spec house on Complainant’s lot. Respondent built the house with some input from Complainant. 2. In July 1998, Complainant filed a complaint with the Registrar of Contractors (ROC) complaining that many items were not satisfactory. After an inspection, ROC Inspector Mark Schweiger issued a Corrective Work Order (CWO) on October 7, 1998. He found several, but not all, of Complainant’s allegations to be valid and ordered Respondent to correct those items that he found did not measure up to industry standards. The items that ended up at issue at the hearing are in four general areas: close-out documentation (CWO items 1 and 2), siding (CWO item 4), concrete at the rear patio and driveway (CWO items 7, 8, and 9), and vinyl flooring (CWO item 15). Each of these will be addressed in turn. 3. Complainant complained that he did not get adequate documentation from Respondent regarding a list of subcontractors and warranties for installed equipment. The CWO ordered Respondent to “correct” this “by appropriate means.” Respondent has provided Complainant with a list of subcontractors and the names of the manufacturers of various materials used in the house, including some warranty papers. Complainant continues to be dissatisfied, but the evidence does not show that Respondent’s response to the CWO was inadequate. 4. Complainant also alleges that the touch-up painting Respondent did on the siding needs to be fixed because it is “blotchy.” The Inspector did not see any blotches on the siding until they were pointed out to him by Complainant. The Inspector granted that the blotches may be visible in certain slants of light, but concluded that they are not “readily visible” and therefore, meet minimum workmanship standards. He did not require correction of the blotches in the CWO. The evidence supports the Inspector’s conclusion that the siding meets minimum industry standards. The statutes and rules of the ROC do not require perfection or even exceptional work by contractors. All that is required is that the work meet minimum workmanship standards. Complainant’s siding is acceptable. 5. On the other hand, Complainant’s driveway clearly does not meet minimum workmanship standards. After being ordered to by the CWO, Respondent attempted to fix shoe prints in the driveway by using a patch material that is significantly lighter than the original concrete. On top of that a sealant was applied. This has resulted in light-colored “squares” spaced uniformly all the way down the driveway. Also, there are animal footprints visible in part of the concrete. The Inspector testified that the “squares” are not within industry standards. The evidence shows that the “squares” and the animal prints need to be corrected so that the driveway meets minimum workmanship standards. The evidence does not show that the marks made by the sealant roller cause the driveway to fall below minimum industry standards. Also, at the hearing Complainant accepted the condition of the rear patio, which is no longer easily visible because Complainant built a low deck over it. 6. The issues with the vinyl flooring are the most complicated. The Inspector did not order any corrective work on the vinyl flooring because there had been a verbal agreement between the parties. At issue at the hearing was the extent of the verbal agreement. The evidence shows that at one time there were several problems with the vinyl. There was a pattern misalignment at the utility room door, gouges in the kitchen area, and the seam at the bedroom door was curling. When Respondent sent its flooring person to make the repairs, an agreement with Complainant was made. Complainant received a $300 credit against the balance he owed Respondent and accepted the misaligned pattern at the utility room doorway. The credible evidence shows that that was the only thing that Complainant accepted as part of the settlement. Complainant would not have let Respondent off the hook for fixing the vinyl at the bedroom doorway. Complainant’s testimony that the bedroom doorway was not part of the settlement is logical and supported by the greater weight of the evidence. 7. The repair at the bedroom doorway entrance does not meet minimum workmanship standards because the new piece of vinyl that was installed is a different shade than the original. Although the technical installation work is excellent, the new patch does not aesthetically blend with the original tile and is unsightly. The evidence supports a finding that the repair was Respondent’s responsibility and was done on behalf of Respondent. There is also a seam in Complainant’s Arizona room that is parting and needs repair. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met this burden with respect to the driveway and the vinyl flooring. 2. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(3), violation of a rule, namely Arizona Administrative Code (A.A.C.) R4-9-108, by performing work that fails to meet minimum workmanship standards, as identified in factual findings 5 and 7 above. 3. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(7), commission of a wrongful act that causes substantial harm, by performing substandard work as noted in the factual findings. 4. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(23), by failing to comply with a properly issued Corrective Work Order. In mitigation, however, it should be noted that Respondent made a good faith effort to comply with the CWO, but fell short. 5. Respondent should be given one more chance to properly correct the driveway squares and animal prints, and the vinyl seam and discolored patch. If Respondent fails to do so, its license should be suspended until the corrections are complete. This ALJ does not recommend a civil penalty in this matter. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 108810, issued to Treetop Builders, Inc., be suspended beginning the effective date of the Registrar’s Order until Respondent has repaired or caused to be repaired in a workmanlike manner the items listed above in Findings of Fact 5 and 7, which are the driveway squares and animal prints, the vinyl seam in the Arizona room, and the off-tone vinyl patch at the bedroom doorway.

. . . IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place.

Done this 16th day of September 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of September 1999, to:

Michael P. Goldwater Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By ___________________________

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