ALJDEC

99F-P0270-ROC · Registrar of Contractors · 2000-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2000, at 8:30 a.m. APPEARANCES: The Complainants appeared through James Muir. The Respondent appeared through his attorney, Harold Stephenson. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on January 25, 2000. The Complainants appeared through James Muir and the Respondent appeared through his attorney, Harold Stephenson. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent agreed to complete an extensive remodeling of the Complainants’ existing residence. The contract price for the remodeling project was $43,143.83 of which the Complainants have paid $10,000.00. 3. During the course of construction, the Complainants had a personal confrontation with an unlicensed person who was working as a subcontractor for the Respondent. The Complainants then refused to pay any further moneys for the project until the Respondent did something to control the behavior of the unlicensed person and declined to pay any additional moneys to the Respondent until corrective action was taken on the residence. The Respondent then stopped work on the residence until or unless it was going to have an assurance that he was going to be paid in full for his work. 4. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct and complete his work despite repeated requests that he do so. The Complainants then filed a formal complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. The Respondent performed some of the corrective action but failed to comply with the terms and conditions of the corrective work order. 7. There was discussion during the hearing as to whether the unlicensed person would be allowed back on the Complainants’ property to perform corrective work. The person is unlicensed and should not have been performing any type of construction work on the Complainants’ property and is not entitled to an opportunity to perform corrective action on his work. The Complainants’ actions in denying access to the unlicensed person were shown to be reasonable and justified. 8. The Respondent’s actions in knowingly utilizing an unlicensed person as a subcontractor on the construction project and then knowingly attempting to assist the unlicensed person to gain access to the Complainants’ residence so that the unlicensed person could perform corrective action on his construction work are found to constitute a wrongful act. 9. The following items were shown to constitute unacceptable workmanship and to require proper correction by the Respondent: j) The Respondent knowingly utilized an unlicensed person to construct the new stonework at the Complainants’ residence. The new stonework, including the stone fireplace, the stone columns and the stone flag pole base, was shown to fall below minimum industry standards and to require proper repair or replacement. The Respondent shall, utilizing a properly licensed contractor, cause the stonework to be properly repaired or replaced. k) The trellis area door has not been installed. The Respondent shall cause the missing door to be properly installed. l) The porch overhang, railings and steps were left incomplete. The Respondent shall cause the porch overhang, railings and steps to be properly completed and stained. m) The proper staining of the interior of the residence has not been completed. The Respondent shall cause the staining of the interior of the residence, including the entire kitchen area, to be properly completed. n) The front entry door does not have a “bar window” installed. The Respondent shall properly repair or replace the front entry door. o) The kitchen cabinets have not been completely painted or stained. The Respondent shall properly complete the painting or staining of the kitchen cabinets. p) The electrical wiring of the residence has not been completed. The Respondent, utilizing a properly licensed contractor, shall cause all of the electrical work, including the wiring, to be properly completed. q) The gates, gate posts, and hitching pole have not been completed. The Respondent shall properly complete the construction of the gates, gate posts and hitching post. r) Credible evidence established that dirt and debris were left on the interior surface of the residence prior to sealing. The Respondent shall cause the areas with dirt and debris to be properly corrected and then properly finish and reseal the corrected areas. s) The TV cabinet is not complete. The Respondent shall properly complete the TV cabinet. t) Credible evidence, presented at hearing, established that the Respondent inadvertently damaged portions of the exterior siding and damaged some exterior windows during the Respondent’s sandblasting of the Complainants’ residence. The Respondent shall properly repair or replace the damaged exterior siding and damaged exterior windows. u) The interior wood floors have not been properly finished and sealed. The Respondent shall properly complete and seal the interior wood floors. v) The built-in desk has not been completed. The Respondent shall properly complete the desk. w) Credible evidence established that the upper entrance window fails to comply with applicable specifications. The Respondent shall properly replace the upper entrance window. x) The library, including the bench, doors, telephone and electrical wiring, has not been completed. The Respondent shall properly complete the library and shall, utilizing a properly licensed contractor, cause the electrical and telephone wiring to be properly completed. y) The exterior trim, facia and garage door have not been properly sealed or painted. The Respondent shall properly seal or paint the exterior trim, facia and garage door. z) Credible evidence, presented at hearing, established that the floor beam support posts under the staircase do not comply with applicable minimum industry standards. The Respondent shall properly repair or replace the floor beam support posts under the staircase. aa) The stairway and railing, as constructed by the Respondent, fails to comply with minimum industry standards, applicable code requirements, and were shown to constitute a danger to anyone using the staircase. The Respondent shall promptly cause the stairway and railing to be properly repaired or replaced. ab) Credible evidence established that there has been unacceptable shrinkage in the interior wood finish trim in the residence. The Respondent shall properly repair or replace the interior wood trim. ac) The living room door is out of adjustment. The Respondent shall properly correct the living room door. ad) Credible evidence, presented at hearing, established that the Respondent entered into an oral agreement to construct two small wood bridges for the Complainants. The Respondent shall properly construct the two small wood bridges in accordance with his agreement with the Complainants. 31. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A)(1)(2) (7) (Wrongful Act)(10) (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B- License be revoked unless the Registrar of Contractors receives proof that the Respondent has properly caused the accomplishment of proper corrective action on the items set forth above in Finding of Fact Nos. 9(a) through 9(u), inclusive. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No. P99-0270 shall be closed. It is further recommended that the Respondent be formally admonished that a licensed contractor may not aid or abet an unlicensed person to evade the licensing provisions of applicable state code provisions. The use of unlicensed persons as subcontractors, in violation of applicable state statute, is not acceptable and that any future violation may result in the revocation of the Respondent’s License. Done this day, February 11, 2000.

______________________________________ M. DOUGLAS Administrative Law Judge

Original transmitted by mail this ____ day of February, 2000, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488