ALJDEC

99F-T0014-ROC · Registrar of Contractors · 1999-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|CONNIE AND LAURA KIRKWOOD, |(|Case No.: T98-0864-ROC | |Complainants, |(| | |vs. |(|Docket No.: 98F-T0864-ROC | |License No. 059906, Class B of |(| | |Donald K. Lussier, d.b.a. |(| | |DONALD K. DONALD BUILDERS, |(|Recommended | |Respondent, |(|Decision and Order | |and |(| | | |(| | |DONALD K. DONALD BUILDERS, |(|case no. t99-0014 | |Complainant, |(| | |vs. |(|Docket No. 99F-T0014-ROC | |License No. 051203, Class C-11 of |(| | |Frank Lourdes Rossini, d.b.a. |(| | |ROSSINI ELECTRIC (INDIV), |(| | |Respondent. |(| | | |(| | | |(| | | |(| | | |(| | | |(| |

HEARING: December 14th, 1998, 9:00 a.m., and March 8th, 1999, 9:00 a.m. Appearances: The Complainants appeared through Ms. Laura Kirkwood. The Respondent/Complainant Donald K. Donald Builders appeared through Qualifying Party, Donald K. Lussier. Respondent Rossini Electric appeared through Qualifying Party, Frank Lourdes Rossini. Administrative Law Judge: Grant Winston

These consolidated matters were brought on for administrative hearing on December 14th, 1998, and March 8th, 1999. Testimony was heard and other evidence admitted into the record and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law and Recommended Order are made. . . . . . . FINDINGS OF FACT

1. Complainants Connie and Laura Kirkwood (hereinafter “the Kirkwoods”) contracted with Respondent/Complainant Donald K. Lussier, doing business as Donald K. Donald Builders (hereinafter “DKD”) in June of 1997, for DKD to construct their residence in Sonoita, Arizona. DKD subcontracted with various contractors for performance of different aspects of the construction. Among the subcontractors hired by DKD for the Kirkwood job was Respondent Rossini Electric (hereinafter “Rossini”). The Kirkwoods moved into their new residence in December of 1997.

2. DKD had failed to complete the residence as late as May of 1998. Many of the aspects of the work were defective. The Kirkwoods filed the instant complaint against DKD with the Registrar of Contractors on June 5th, 1998.

3. The Kirkwoods also filed complaints against at least two of the subcontractors with the Registrar: Connie and Laura Kirkwood v. License No. 113378, Class C-21 of Richard Milo Owens, d.b.a. All Phase Custom Landscaping (Indiv), Case No. T98-0676, Docket No. 98F-T0676- ROC; and Connie and Laura Kirkwood v. License No. 103693, Class C-34 of Tina Marie Salwei, d.b.a. Sodak Painting (Indiv), Case No. T99- 0049, Docket No. 99F-T0049-ROC. The Registrar’s decisions and orders in those cases were entered November 19th, 1998, and February 5th, 1999, respectively. Administrative notice is taken of those cases, including the Registrar’s decisions and orders in them.

4. This case of the Kirkwoods, against DKD, was noticed for hearing on December 14th, 1998. However, due to the amount of evidence the parties wished to present, it was necessary to schedule a second day of hearing for March 8th, 1999. The Kirkwoods twice amended their complaint to add additional items of complaint regarding the construction of their Sonoita home. 5. DKD, meantime, had filed its own complaint against subcontractor Rossini Electric; Case No. T99-0014, Docket No. 99F-T0014-ROC. Pursuant to order of the Registrar in that case dated December 31st, 1999, and Notice of Re-Hearing in that case dated February 8th, 1999, that case was ordered consolidated with the Kirkwoods’ complaint against DKB. Both of these hearings concluded on March 8th, 1999.

6. The Kirkwoods’ complaint is extraordinary in the number of items of complaint it puts into issue, and the number of Corrective Work Orders it prompted to be issued. Registrar of Contractors’ Inspector Mr. James R. Morris was assigned to the case, and eventually issued four Corrective Work Orders to DKD. Additionally, the Kirkwoods added more items to their complaint by two later addenda. Items on the first addendum were inspected by Mr. Morris, and he testified as to his findings of them. The second addendum was dated December 12th, 1998, and consequently Mr. Morris was unable to inspect or issue a Corrective Work Order relative to it.

7. DKD, concedes its responsibility to correct almost all the items listed in the Corrective Work Orders and the addenda filed by the Kirkwoods. DKD does deny a few of the items on the ground that they are not the contractual responsibility of DKD. DKD’s biggest defense, one which was testified to repeatedly by Mr. Lussier at hearing, is that he and his subcontractors have tried and tried to correct the various items, but due to extreme harassment and verbal abuse of the workers, DKD has been unable to affect the corrections. Mr. Lussier testified that he has had workers refuse to return to the Kirkwoods’ residence as a result of their unwillingness to be subjected to any further harassment and abuse from the Kirkwoods. Mr. Lussier’s testimony in this area is uncorroborated by any other evidence of record. Co-Complainant Laura Kirkwood denied any harassment, and two witnesses who performed work on the Kirkwood home denied that they had been harassed on that job by anyone.

8. DKD also testified through Mr. Lussier that DKD had not yet performed some of the corrective work as DKD was waiting to see how the complaints with the Registrar were resolved, and also because he thought that by waiting until the administrative complaint process ran its course, there would be established by the Registrar some “ground rules” for the course of action he should undertake.

9. DKD also testified, through Mr. Lussier, and it is found based on this testimony and the complaint, that the Kirkwoods moved into their new residence months before the construction of it was actually completed. Therefore, there is a lack of evidence as to the cause of a couple of the items in need of correction.

10. DKD also testified, through Mr. Lussier, that the ROC Inspector, Mr. Morris, was biased against him while performing his job as Inspector, and therefore his testimony and orders are not credible. However, there is no independent evidence of bias on Mr. Morris’s part to corroborate this claim, and therefore it remains unsubstantiated.

11. In accordance with the preponderance of credible evidence of record, it is found that DKD failed to correct many of the items it was ordered to correct in the four Corrective Work Orders, and that many of the legitimate items of complaint in the Kirkwoods’ two addenda were not corrected either. The following items constitute unacceptable workmanship and require appropriate corrective action by DKD. Items not addressed are those found not to have been supported by sufficient evidence to find wrongdoing by DKD. The items are subdivided into each of the Corrective Work Orders, and the two addenda, and listed as they were in those documents. It is further found that, administrative notice of the two other decisions and orders of the Registrar in the related cases mentioned at Finding of Fact #3 above having been taken, in accordance with the Conclusions of Law reached in this case, the Registrar’s findings and decisions in those cases are the law of the case, and binding here.

12. As to the Corrective Work Order dated July 1st, 1998, the following items are unacceptable and require appropriate corrective action by the Respondent: 2-2 Contractor to correct mortar smears on manufactured steel fireplace box by appropriate means. 3-1 Contractor to supply roofing system specifications, if emulsion is not part of the system, then no action is required. 3-2 Contractor to show records for roofing applicators as licensed contractor (supply license number) or employee records. 4-2 Contractor to install lavatory sink stopper properly; and replace defective components if within manufacturer’s warranty period. 4-5 Contractor to have Kohler manufacturer representative look at finish on lavatory sinks in master bath and hall bath to determine cause of etched finish. 5-1 Contractor to correct cracks in drywall seam in living room and where vigas enter drywall in living room by appropriate means. 6-1 Contractor to correct ceramic floor tile high and low points to Registrar of Contractors’ standards by appropriate means. 6-2 Contractor to correct ceramic tile on kitchen counter to include: a) island: make level; b) island: correct edge details; c) counter: 90 degree corner low at back corner; d) counter: too tight at stove unit; e) counter: trim too low at bread boards, f) counter: section at east of stove too low (all by appropriate means). 6-3 Contractor to clean ceramic tile adhesive off kitchen cabinets per jobsite agreement, by appropriate means. 6-4 Contractor to fill gap from tile to wall at top of shower wall tile by appropriate means per jobsite agreement. 6-5 Contractor to complete laundry room work surface counter top in ceramic tile per contract agreement. 8-1 Contractor to seal doors all six sides by appropriate means: Include front entry, study and pantry doors. 8-2 Contractor agrees to refinish interior side of exterior door unit at entry, correct by appropriate means. 8-3 Contractor to prep and finish ceiling wood panel in living room and dining room by appropriate means to achieve matte finish per sample. 8-4 Contractor to correct paint finish on storage compartment doors in garage by appropriate means. 8-5 Contractor to repaint porches/vigas affected by overspray by appropriate means. 8-6 Contractor to correct stucco patches/paint to match house by appropriate means. 9-2 Contractor to trim wood cabinets on west side of stove per agreement by appropriate means. 9-2 a) Contractor to complete this project according to all written and verbal contract agreements, prints, plans, specifications, manufacturer’s specifications and recommendations, in accordance with good workmanship practices, industry standards and per all applicable codes.

13. As to the Corrective Work Order dated July 13th, 1998, addressing items on list dated May 26th, 1998, the following items are unacceptable and require appropriate corrective action by DKD: 10-1 Contractor to tape or caulk sheet rock at ducts and return air plenum in mechanical room in garage by appropriate means. 10-2 Contractor to cut sheet rock that extends to floor in garage on north wall alongside the two garage doors by appropriate means. 10-3 Contractor to stop water from entering and ponding in garage floor by appropriate means. 10-4 Contractor to repair cracks in garage floor with approved materials in a workmanlike manner by appropriate means. 11-1 Contractor to coordinate window cleaning with homeowner per contract and supervise the proper technique per manufacturer’s recommendations. 11-3 Contractor to adjust doors/locks/weatherstripping as discussed at jobsite inspection, by appropriate means. 12-1 Contractor to remove and replace A/C compressor slab on south side of house with one of proper tilt and to level the compressor unit. 12-1a Seal pipe to wall on above (12-1) heat pump unit, by appropriate means. Contractor to correct drainage of grade away from house on south and east sides by appropriate means. Contractor to supervise final exterior foundation “final grade” application of termicide chemical after Item #14 is accomplished by appropriate means. Contractor to fill hole in west patio cover support post identified at jobsite inspection by appropriate means. 17-2 Contractor to fill areas between bricks on patios with sand by appropriate means. 17-3 Contractor to correct tile base on patio support identified at jobsite inspection on west patio by appropriate means, 18-1 Contractor to fulfill his obligations as to landscaping per any contract agreement with homeowner, and to the extent of guarantee on ground cover plants that have died. 18-2 Contractor to comply as in 18-1 on landscape irrigation. 18-3 Contractor to comply on irrigation line backfill per item 18- above. 18c Contractor to cease and desist using unlicensed subcontractors.

14. As to the Corrective Work Order dated July 13th, 1998, addressing items on list dated June 19th, 1998, the following items are unacceptable and require appropriate corrective action by DKD: Contractor to correct paint overspray on garage floor per agreement, by appropriate means. Contractor to apply clear sealer on fireplace mantle in living room by appropriate means. Contractor to install a hinge pin on bathroom door on bathroom off kitchen. Contractor to caulk viga poles on patio at entry to stucco per job site agreement by appropriate means.

15. As to the Corrective Work Order dated August 21st, 1998, the following items are unacceptable and require appropriate corrective action by DKD: Contractor to install electrical outlet in island counter per code. 16. Contractor to supply access to caldera tub per code. 17. Contractor to complete roofing on water tank/pump house per contract. 18. Contract to correct low areas in brick pavers. 19. Contractor to complete elastomeric coating on parapets per contract/agreement. 20. Contractor to complete finish on windows and doors per contract. 21. Contractor to complete finish on kitchen ceiling over island cabinet to match the rest of that room. 22. Contractor to return any of the homeowners’ proprietary house plan sepias in his possession or control.

16.As to the Kirkwoods’ addendum to their complaint dated October 22nd, 1998, the following items are unacceptable and require appropriate corrective action by DKD: Contractor to extend the metal of the scuppers beyond the stucco in order to create a satisfactory drip edge so as to prevent water from seeping back into the stucco, by appropriate means. Contractor to correct all cracks at parapet walls wider than 1/8”, and to weatherproof and apply elastomeric coating, by appropriate means. The hand brush marks in the paint on the garage personal door are unacceptable; contractor to correct by appropriate means. Contractor to complete the painting in the areas on the parapet and scuppers behind the heat pump and master bedroom by appropriate means. Contractor to correct the sagging of the garage door so that the dead bolt will pass into its keeper.

17. As to the Kirkwoods’ addendum to their complaint dated December 12th, 1998, the following item is unacceptable and requires appropriate corrective action by DKD: Contractor to securely fasten the hall toilet by appropriate means.

18. It is found, as stated by Inspector Morris in each of his Corrective Work Orders: From a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainants is necessary.

19. DKD knowingly contracted with unlicensed persons to perform work for which a license is required.

20. In the consolidated case of DKD versus Rossini, DKD failed to produce a preponderance of credible evidence in support of his complaint. In fact, the evidence that was produced demonstrated that Rossini had not neglected to perform under the contract. The obligations relative to the electrical work to be performed at the Kirkwoods’ residence, especially as to the electrical outlet for the kitchen island, should have been performed in the first instance by DKD. Rossini had no obligation arise because DKD did not first perform its obligation to install a pathway to the island.

21. Notice is taken of DKD’s prior license record with the Registrar of Contractors.

Conclusions of Law

1. These consolidated cases were heard under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092.

2. Respondent DKD is charged in the Citation and Complaint, in case T98- 0864, with possible violations of A.R.S. §32-1154.A.1., 7., 10., 14., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).

3. The preponderance of evidence demonstrates that the Respondent DKD, in case number T98-0864, did violate A.R.S. §32-1154.A.1., 7., 10., 23., and 3., as set forth in the Citation and Complaint.

4. The Registrar’s Decisions and Orders in Cases T98-0676, and T99-0049, to the extent that they address the same facts and circumstances addressed in this case, are the law of the case, and are conclusive as to the same issues presented at this hearing, and at the time of this recommended decision and order.

5. Respondent Rossini Electric is charged in the Citation and Complaint in case no. T99-0014, with possible violations of A.R.S. §32- 1154.A.7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).

6. There is a lack of evidence sufficient to support a conclusion that Rossini Electric violated the provisions of the contractors’ laws as set forth in the Citation and Complaint issued in case no T99-0014.

Recommended Orders

Wherefore, it is hereby recommended that Respondent DKD’s Class B License Number 059906 shall be revoked unless the Registrar of Contractors receives proof that the Respondent DKD has properly caused the accomplishment of the corrective action set forth above in Findings of Fact ##12-17.

It is further recommended that if the Respondent DKD properly accomplishes the above-described corrective action, on or before the effective date of this order, that the above-provided license revocation shall not take place, and Citation and Complaint No. T98-0864, together with the complaint on which it is based, shall be closed.

It is further recommended that Citation and Complaint No. T99-0014, together with the complaint on which it is based, be dismissed.

Dated this 12th day of March, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of March, 1999, to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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