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April 17, 2000
(A
version of this article appears in the California Construction
Law Reporter, published by the West Group.)
By James Acret
Tellis
built a home for owners in five months and sold it to them
at a contract price of $226,000. After Tellis completed
the work on three punchlists, owners signed off on the final
escrow instructions, escrow closed and Tellis was paid in
full.
Eight months later, owners gave Tellis a punchlist
of 22 items, some which Tellis repaired. Tellis refused
to replace the tile kitchen floor but merely wanted to replace
loose tiles. Tellis also disputed owners' claim that the
swamp cooler was undersized but acknowledged the other requested
repairs were needed and was willing to make them.
Owners
filed a complaint with the Contractors State License Board
in August 1996, complaining that 27 items required repair.
The board employed an industry expert, Michael Mollica,
who concluded that 20 items were below industry standards,
including the kitchen floor, which should be replaced. Between
October 24, 1996, and January 22, 1997, Deputy Board Registrar
Fountain attempted to resolve the matter informally. Tellis
refused to, then agreed to, repair the floor. He was given
a deadline of January 31, 1997, which was extended to February
6. Tellis then advised Fountain that the tile contractor
was unable to repair the floor until March.
Owner on February
7 complained to Fountain's supervisor, Marquez, who, without
reviewing the case file, agreed that Tellis had had ample
opportunity to complete the repairs and authorized owners
to hire someone else. Owners had the repairs completed for
$5,286, and the board filed a citation against Tellis. Tellis
appealed the citation, and an administrative law judge affirmed
the board's findings. Tellis filed a petition for a writ
of administrative mandamus, which the trial court denied.
AFFIRMED. Tellis v. Contractors State License Board,
___ Cal.App.4th ___, ___ Cal.Rptr.2d ___, 2000 Daily Journal
D.A.R. 3017 (4 Dist. 2000)
The
substantial evidence rule applies. Business and Professions
Code §7109, subdivision (a) provides:
A
willful departure in any material respect from accepted
trade standards for good and workmanlike construction
constitutes a cause for disciplinary action, unless the
departure was in accordance with plans and specifications
prepared by or under the direct supervision of an architect.
Assuming,
without deciding, that "willful departure" requires
knowledge that the work is substandard, substantial evidence
supports the decision of the board. Tellis was a knowledgeable
licensed contractor with substantial experience. He failed
to properly prepare surfaces for tiling, used improper adhesives
causing the tiles to fall off, failed to use proper caulking
when setting sinks so that the sinks came loose, improperly
mixed and installed mortar so that the shower stall leaked,
failed to bond tiles properly to floor and to maintain a
flat plane at the tile surface, and failed to attach tile
trim properly around the sink, which caused seepage.
Business
and Professions Code §7113 provides:
Failure
in a material respect on the part of a licensee to complete
any construction project or operation for the price stated
in the contract for such construction project or operation
or in any modification of such contract constitutes a
cause for disciplinary action.
Tellis
argues he was ready, willing and able to repair the 17 items.
But he was paid in full and ostensibly completed the project
in September 1996. Any material substandard work existing
at that time constituted a violation of §7113. His
later agreement to repair the work does not negate the violation.
There is evidence that Tellis might have completed the repairs
if he had been given a couple more months to do so, but
there also is evidence that he was given ample time to make
the repairs, initially refused, then delayed and finally
arranged for repairs to be made by someone not available
for over a month. Thus, the owners were justified in retaining
someone else to do the work. If the board gives a contractor
an opportunity to make repairs, the contractor should act
expeditiously, knowing that any delay may subject a contractor
to prosecution.
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To learn more about Thelen's Construction and Government Contracts Department, click here. For more information about books and other legal materials written by James Acret, click here and enter "Acret" in the Search Products Field. To learn more about topics covered in this article, contact Paul Berning at (415) 369-7229 or at pwberning@thelen.com.
©2000 Thelen LLP
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