ALJDEC

00F-A0218-ROC · Registrar of Contractors · 2000-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On October 17, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Charles and Ann Musarra appeared on their own behalf. Craig Dombey appeared on behalf of Vantage Pointe Homes, LLC (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT 1. Charles and Ann Musarra (the “Complainants”) are the owners of a home (the “Home”) located at 1783 East Mulberry, Prescott Valley, Arizona. Craig Dombey is the Respondent’s Construction Manager. Don Olson is the Respondent’s Warranty Manager. On October 12, 1998, the parties entered into a Construction Contract (the “Contract”) to build the Home. See Respondent’s Exhibit A.

2. On or about November 29, 1999, the Complainants filed a complaint with the Registrar of Contractors (“ROC”) alleging several deficiencies with the Home. See Complaint, dated November 29, 1999. On or about December 1, 1999, ROC Inspector Cliff Frandsen scheduled a jobsite inspection for December 13, 1999, at the Home.

3. Inspector Frandsen, the Complainants, Mr. Domby and Mr. Olson were present for the December 13, 2000 inspection at the Home. On or about December 14, 1999, Inspector Frandsen issued a Corrective Work Order (“CWO”) to the Respondent ordering that seven items be corrected. See CWO, dated December 14, 1999. On or about January 5, 2000, the Complainants requested a hearing in this matter.

4. At the hearing in this matter, Mr. Musarra testified that there are three items requiring corrective work at the Home. These items included the following: a. There is water and dirt coming through the Home’s windows; b. The Home’s Sante Fe drywall finish was not properly completed; and

c. Seams and nail pops were conspicuous on the Home’s walls.

5. Mr. Musarra testified that the Home’s aluminum framed windows are wet or damp in the morning. Mr. Musarra testified that dirt also comes through the windows. Mr. Musarra submitted a letter from Charles R. Taylor, the President of Taylor’s TLC. See Complainant’s Exhibit 1. Mr. Taylor holds a general contracting license in New Mexico and Michigan. Id. Mr. Taylor is the president of a general contracting company that specializes in window placement. Id. Mr. Taylor inspected the Home’s windows on December 29, 1999. Id. Unfortunately, Mr. Taylor was not present in person (or by telephone) at the hearing in this matter to allow the Respondent the opportunity to cross-examine him. Accordingly, little if any weight can be given to Mr. Taylor’s letter.

6. Mr. Taylor wrote that he noticed that the weather stripping around the windows was not installed properly. Id. Mr. Taylor did not elaborate on the exact problem with the weather stripping. Mr. Taylor further wrote that the Home’s windows “appear to be only what is necessary to pass code.” Id. Mr. Taylor did not write that the windows failed to meet industry standards.

7. Mr. Taylor wrote that wood or vinyl windows probably should have been installed at the Home. See Complainant’s Exhibit 1. However, the Contract calls for aluminum framed windows. See Respondent’s Exhibit A. Mr. Taylor further wrote that the aluminum framed windows installed at the Home did not appear to have thermal breaks, which stop the transfer of cold air to the inside of the Home. See Complainant’s Exhibit 1. However, the Contract is silent on the requirement of thermal breaks in the windows. See Respondent’s Exhibit A.

8. The Complainant also submitted a letter from Rhett Harvick, an inspector with Commonwealth Construction and Inspection Services. See Complainant’s Exhibit 2. Unfortunately, Mr. Harvick could not be present in person (or by telephone) for the hearing in this matter to allow the Respondent the opportunity to cross-examine him. Accordingly, little if any weight can be given to this letter. Mr. Harvick wrote that the Home’s windows were not installed properly. Id. Mr. Harvick wrote that the areas around the windows were not flashed or sealed correctly thus allowing water and air into the house. Id.

9. Larry D. Tubbs is the Sales Representative for General Aluminum Corp., the manufacturer of the Home’s aluminum framed windows. Mr. Tubbs testified that the windows manufactured by General Aluminum Corp. are tested for water leakage by the Architectural Aluminum Manufacturing Association (“AAMA”), a national testing association. See Complainant’s Exhibit 5. Mr. Tubbs testified that the windows manufactured by General Aluminum Corp. exceed the standards set by the AAMA. Id.

10. Mr. Tubbs conceded that even though a window may exceed the standards set by the AAMA, the window must still be installed properly to perform effectively. Mr. Tubbs resides in Oklahoma. On December 16, 1999, Mr. Tubbs traveled to Prescott, Arizona, to inspect the Home’s windows. Mr. Tubbs testified that he inspected all of the Home’s windows. Mr. Tubbs testified that the windows were installed properly. Mr. Tubbs testified that the weather stripping was installed within industry standards. See Respondent’s Exhibit D (Mr. Tubb’s Report).

11. Mr. Tubbs submitted a report to his superior at General Aluminum Corp. See Respondent’s Exhibit D. Mr. Tubbs reported that all windows have air infiltration points at the operating points on the operable sash. Id. Mr. Tubb reported that fine dirt can penetrate these infiltration points over time. Id. Mr. Tubbs noted that there is considerable fine dirt around the Home. Id. Mr. Tubbs also noted that there was construction occurring near the Home that could have caused excessive dirt in the air. Id.

12. Mr. Tubbs testified that water was not coming through the Home’s windows from the outdoors. Mr. Tubbs testified that it is not unusual for condensation to form on windows. See Respondent’s Exhibit B. Mr. Tubbs testified that condensation will form when there is moisture in the Home and there are colder temperatures outside of the Home. Mr. Tubbs testified that the aluminum in the aluminum framed windows will conduct the cold from the outside causing condensation.

13. Mr. Tubbs testified that excess moisture in the Home is the biggest cause of the condensation on the Home’s windows. Mr. Tubbs testified that the moisture can be reduced by several means. Mr. Tubbs testified that modern homes are built very “tight” which keeps the moisture in the home.

14. ROC Inspector Frandsen testified that he inspected the Home on October 13, 2000, at approximately 9:00 a.m. in the morning. Inspector Frandsen testified that he observed some moisture on the aluminum framing of one window. Inspector Frandsen testified that water was not coming through the windows from the outdoors. Inspector Frandsen testified that the windows appeared to be within industry standards.

15. The Complainant testified that the Home’s interior Sante Fe drywall finish was not completed properly. The Complainant testified that seams and lines are visible on the walls. The Complainant testified that different colors were used on the interior walls. The Complainant testified that insufficient material was applied to the walls of the Home. Unfortunately, the Complainants failed to bring any pictures of the Home’s interior walls to the hearing in this matter.

16. The Complainant resubmitted the aforementioned letters from Mr. Taylor and Mr. Harvick. Mr. Taylor wrote that he inspected the texture on the interior walls and ceiling of the Home. See Complainant’s Exhibit 1. Mr. Taylor wrote that it appeared that the contractor was short on materials. Id. Mr. Taylor urged that the Complainant compare the texture of the Home’s interior walls to the model home. Id.

17. Mr. Harvick wrote that “this is one of the worse drywall and texture jobs I’ve seen in my twenty years in construction!” See Complainant’s Exhibit 2.

18. Don Olson has over thirty years of experience in the construction business. He has 15 years of experience as a remodeling contractor. Mr. Olson testified that Paul Johnson Drywall performed the drywall work at the Home. Mr. Olson testified that Paul Johnson Drywall has drywalled over 50 houses for the Respondent. Mr. Olson testified that the Respondent has never received a complaint because of Paul Johnson Drywall’s work except for the complaint filed by the Complainants.

19. Mr. Olson testified that Paul Johnson Drywall returned to the Home three times to appease the Complainants. Mr. Olson testified that he returned twice to the Home to perform corrective work on the Home’s drywall. Mr. Olson testified that the Home’s drywall is within industry standards. Mr. Olson testified that the Home’s Sante Fe finish was the same as the model home that the Complainants walked through.

20. ROC Inspector Frandsen testified that he inspected the Home’s interior walls on October 13, 2000. Inspector Frandsen testified that the texture on the Home’s walls was fairly smooth. Inspector Frandsen testified that there was no deficiency in the material applied to the walls. Inspector Frandsen testified that there was no deficiency in the Respondent’s workmanship. Inspector Frandsen testified that he compared the texture on the Home’s interior walls to the walls of the model home. Inspector Frandsen testified that the textures were substantially the same.

21. Mr. Musarra also testified that there were several nail pops in the walls of the Home. Mr. Musarra testified that the nail pops have been substantially corrected by the Respondent.

22. Inspector Frandsen testified that nail pops are quite common in the industry. Inspector Frandsen testified that contractors are allowed one year to fix this problem. Inspector Frandsen testified that Mrs. Musarra told him on October 13, 2000, that this problem had been resolved.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108. Insufficient evidence was presented showing that the Respondent failed to perform in a professional and workmanlike manner. The work performed by the Respondent was within industry standards.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7). Insufficient evidence was presented showing that the Respondent committed a wrongful act against the Complainants that caused substantial injury.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23). The Respondent performed all necessary corrective work within a reasonable amount of time.

5. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B license pursuant to A.R.S. §32- 1154. This was a difficult case to decide because of the letters submitted by the Complainant (from Mr. Taylor and Mr. Harvick). However, the undersigned Administrative Law Judge cannot ignore the testimony of Mr. Tubbs and Inspector Frandsen who both testified that the Respondent’s work was within industry standards.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number A00-0218 be dismissed. Done this day, November 1, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of November, 2000, to:

Michael P. Goldwater Registrar of Contractors 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