ALJDEC

00F-M0258-ROC · Registrar of Contractors · 2000-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2000 at 9:00 a.m. APPEARANCES: Complainants appeared on their own behalf; Respondent appeared through its owner and qualifying party, Julian Tucker. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence concerning the issue of whether Respondent violated the statutory subsections charged in the Registrar of Contractors’ Citation and Complaint when it installed and performed related construction around Complainants’ manufactured residence. Based on the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT The Parties The Registrar issued License No. 128487, Class B-, to R D S Construction, Inc. on November 3, 1997. Julian Tucker was listed on R D S Construction, Inc.’s license as a principle but resigned on March 10, 2000. The Registrar issued License No. 138572, Class KB-02, to Respondent Granite Builders, LLC, on September 6, 1998. Mr. Tucker is the qualifying party and a member in Respondent limited liability company. Complainants were considering purchasing 1-1/3 acres of land in a remote area of Pinal County, on which they planned to place a manufactured house purchased from Mountainview Homes, a dealer licensed by the Department of Building and Fire Safety, Office of Manufactured Housing (“BFS/OMH”). Mountainview Homes solicited bids from Respondent or, prior to September 1998, from R D S Construction, Inc. to set manufactured homes that Mountainview Homes had sold to consumers. Respondent’s qualifying party used to work in the manufactured housing industry for Cavco Industries, a manufacturer licensed by BFS/OMH. BFS/OMH has not issued an installer’s or any other license to Respondent, however. The Transaction at Issue On July 10, 1998, R D S Construction, Inc. submitted an itemized bid to Mountainview Homes to prepare the land that Complainants were considering purchasing, to set a manufactured home on the land and to perform certain collateral construction, for a total price of $21,003.64, which included $315.00 to “clear and grub land per customer.” Mountainview Homes presented the bid to Complainants, who indicated their acceptance by signing it. Complainants later decided not to purchase that plot of land because they learned that the county would not issue a permit to build there. Complainants selected another 1-1/3 acre parcel of land near the first one. On August 3, 1998, Respondent submitted a bid to Mountainview Homes to perform substantially the same work on the new parcel, for a total price of $21,504.70. The items included: Dig in home and backfill after install $ 747.50

Install Double-wide home over 50’ long with hardboard close-up and shingle roof 1,750.00

Underground water line (200’ x $5.20/foot) 1,040.00

Underground wood skirting (188’ x $9.20/foot) 1,729.60

Clear and grub land per customer 230.00

A/C 4 ton 12 seer split system 2,093.00

Clean home and remove construction debris 175.00

Concrete flatwork. Does not include footers or turndowns 810.00

The bid did not mention storm doors. Mountainview Homes again submitted Respondent’s bid to Complainants, who again indicated their acceptance by signing it. On September 11, 1998, Respondent met with Complainants to discuss the work to be done. Respondent’s employee noted that, as a result of the discussion, it was to “clear & grub just to get house in; pile up & leave on site.” Complainants removed the trees from the area where the manufactured home would be placed. The manufactured home subsequently was delivered and installed. Respondent subcontracted to a licensed installer work included on the bid that required an installer’s license to perform. The record does not include the name of the licensed installer that set up the manufactured home or the installer’s relationship, if any, to Respondent. Mountainview Homes or Complainants’ mortgage lender or escrow company paid Respondent $21,504.70 for the work performed pursuant to its August 3, 1998 bid. Complainants moved into the manufactured home on November 27, 1998, and noticed numerous problems. On August 18, 1999, Complainants made a complaint to the Registrar against Respondent’s contractor’s license, alleging 18 items. Complainants also made complaints to BFS/OMH against Mountainview Homes’ and Cavco Industries’ licenses. The licensed installer apparently was not named as a party to the verified complaint. BFS/OMH Inspector Dennis Butzen inspected the manufactured home on October 4, 1999, and verified 28 items against Cavco Industries and 13 items against Mountainview Homes. Inspector Butzen referred all items that he believed related to installation to Respondent and the Registrar of Contractors: 15. Main beam twisted: NOT VERIFIED. Registrar of Contractor item. . . . .

44. Cement carport cracked: NOT VERIFIED. Registrar of Contractor item. . . . .

46. Outside panels and seams warped: NOT VERIFIED. Registrar of Contractor item. . . . .

51. Setup of house [off] ½”: NOT VERIFIED. Registrar of Contractor item.

52. Air conditioner bent, dented: NOT VERIFIED. Registrar of Contractor items. . . . .

55. We paid Granite to clear and grub land, which we did - not them: NOT VERIFIED. Registrar of Contractor item.

56. Owe money for water line, 200’ not installed: NOT VERIFIED. ROC item.

57. Soda spilled in kitchen cupboard and warped bottom: NOT VERIFIED. ROC item.

58. We paid Granite to clean up construction debris which we did: NOT VERIFIED. ROC item.

59. We paid Granite to clean house - not done: NOT VERIFIED. ROC item.

The Registrar’s Investigation, Directive, and the Citation and Complaint

On behalf of the Registrar, Inspector Van Bagley on October 12, 1999 performed a jobsite inspection and, on October 22, 1999, directed Respondent within fifteen days to do the following: 16) Concrete cracks are hairline cracks on the carport. No action required.

17) Concrete on carport needs to be patched where there are voids in the finish.

18) The concrete cracks in the control joints are within workmanship standards. No action required.

19) Warped siding. This is a dealer repair item. No action by contractor.

20) Set up of the house is not correct. Both sides of the house do not line up on the east end.

21) The A/C unit condenser fins are bent. Insufficient evidence provided to show the contractor bent the fins. No action required.

22) Resolve the issue of the land not being grubbed per contract.

23) Resolve the issue of homeowner being charged for 200’ of waterline.

24) Insufficient evidence provided to show the contractor is responsible for spilled soda in the kitchen cupboard. No action required.

25) Resolve the issue of the homeowner cleaning up the construction debris that was in the contract for the contractor to remove and cleanup.

26) Clean up the house per contract.

27) Properly install storm doors.

28) The ventilation exceeds the required ventilation requirement. No action required.

29) Re-level the house.

30) All other items on the complaint are under the Office of Manufactured Housing’s jurisdiction.[1] In a letter dated November 10, 1999, Complainants requested an administrative hearing because they said that Respondent had not resolved items nos. 5, 7, 8, 10, 11, and 14 of Inspector Bagley’s directive. On December 27, 1999, the Registrar issued a Citation and Complaint against Respondent’s license, charging it with violations of A.R.S. § 32- 1154.A.7,[2] .23,[3] and .3.[4] After Respondent failed to answer the Citation and Complaint in the time allowed, the Registrar issued a decision and order suspending Respondent’s license. After Respondent showed that it had not received the Citation and Complaint and requested a hearing, the suspension was lifted and a hearing was scheduled in due course. Additional Evidence The Storm Doors Respondent’s qualifying party testified that Complainants purchased the storm doors from Mountainview Homes and that its serviceman Ken Green installed the storm doors. In support of its qualifying party’s testimony, Respondent offered into evidence a copy of a purported Mountainview internal memorandum on plain paper with the following directive: “Gloria, Give Baugher 2 storm doors installed per approval of Al Stassen. Vance 1/7/99.” Complainants agreed that they had purchased the doors from Mountainview Homes but alleged that Ken Green worked for Respondent, not Mountainview. According to Complainants, the storm doors were poorly installed and flapping in the wind, which presented a threat to their children. Complainant Mr. Baugher, who is not a licensed contractor, performed some repairs. Complainants at the hearing demanded $200.00 for Mr. Baugher’s repairs to the storm doors. The Charge for Grubbing the Land Complainants testified that Respondent’s employee Brenda told them they would receive a credit for this labor after escrow closed. Complainants do not believe Respondent did anything to grub out the land. Respondent’s qualifying party testified that he reduced the cost of grubbing out the land from $315.00, the amount on the July 10, 1998 bid, to $230.00, the amount on the August 3, 1998 bid, because Complainants’ decision to remove some of the trees mean that Respondent was required to do less work. Respondent’s qualifying party further testified that it did grub out the second parcel to make a road so that the manufactured home could be delivered and set. The Alleged Partial Settlement At some point after Inspector Bagley issued the October 22, 1999 directive, in a telephone call Complainant Mrs. Baugher demanded $300.00 from Respondent in full or partial satisfaction of the claims against it. Respondent sent a check in this amount to them, marked “For Waterline and Other Matters.” Complainant Mrs. Baugher returned the check to Respondent with a letter dated December 27, 1999, as follows: This $300.00 check is being sent back to you per legal advice.

You owe us $717.00 in cash or check.

And your set up crew has work to do on this house per R.O.C. If I cashed this check I would be accepting $300.00 for everything & I will not settle for anything less [sic].

If you want to settle before court you need to send a check for $717.00. This will take care of all except work pertaining to set-up which you need to arrange with someone to have done.

We will cooperate as much as possible and hope you will also to resolve these matters A.S.A.P.

In response to this letter, Respondent sent Complainants a check for $715.00, which they cashed. No evidence was offered of any notation on the check. Respondent’s qualifying party testified that he made an error in the amount of the check and still owed Complainants $2.00. Respondent’s qualifying party meant the check to be in full settlement of all their claims, however, “except work pertaining to set-up which [Respondent would] arrange with someone to have done.” Respondent understood this phrase to mean work required to level the home and remedy collateral effects of it not having been set to be level. Complainant Mrs. Baugher then sent another letter to Respondent, dated January 20, 2000, as follows: I’m sure you realize that as of 22 February 2,000 your Class DB-02 license will be suspended if you have not completed all work ordered to be fixed.

The reason for this letter is to make you aware of the work left to be done which I will do now.

#1) Relevel the house. #14 on R.O.C. complaint.

#2) Set up of house. #5 on [R.O.C. complaint].

#3) Properly install storm doors #12 on complaint. Will accept nothing less than $200.00 cash/check for this item as my husband had to do this himself in order for these doors to be saved from the wind, including trimming outside to cover up mess made by installers.

#4) Item 4 on Complaint. Warped siding. The Office of Manufactured Housing (Dennis Butzen) has determined that skirting needs to be replaced. If you choose to have another lawsuit you can ignore this but I assure you I will not.

The greenboard siding is not installed straight, has gaps between boards, and has nails & holes in it – nails sticking out, and was installed improperly, therefore is allowing water to get in and warp panels.

The check for $715.00 that you sent covered items on R.O.C. complaint listed below.

#7, #8, #10, #11. You owe us $2.00 as the total was $717.00.

Total cash owed $202.00 to Dave & René Baugher by Julian T.

Items still to be addressed on complaint are #’s 4, 5, 12, 14.

Respondent’s Failure to Level the Home Inspector Bagley testified that the northeast corner of the manufactured house was lower than the rest of the house. It needs to be releveled. Inspector Bagley also testified that, as a result of the northeast corner not being the same level as the rest of the house, the seam or “marriage line” at the east end, where the two sides of the double-wide manufactured home meet, is pulling apart at the top.[5] Inspector Bagley also testified that, as another result of the northeast corner not being the same level as the rest of the house, the beam that runs down the center of the house, which consists of two beams that have been bolted or lagged together and covered with trim, is twisting. In Inspector Bagley’s opinion, problems with the floor also resulted from the manufactured house not being level. Inspector Bagley finally testified that he performed a prehearing jobsite inspection the day before the hearing, which Respondent did not attend. The house had not been leveled and none of the problems caused by the house not being level had been corrected. The Siding Inspector Bagley testified at the hearing that the siding on the manufactured house was warped, especially on the south side. But, in his opinion, the skirting was attached according to the manufacturer’s guidelines and appeared to have been installed correctly. At his prehearing jobsite inspection, he noticed some of the nails pulling out of the skirting. In Inspector Bagley’s experience, siding generally becomes warped as a result of studs twisting or water penetrating underneath the siding. In his opinion, if water caused the warping, it entered from above. In any event, he believed the warped siding more likely resulted from a manufacturing or other defect for which the dealer should be responsible than anything Respondent or its subcontractor installer did. Inspector Bagley does not believe that Respondent’s failure to level the house significantly contributed to the siding warping, because the northeast corner of the house is not level and the south side of the house is where the siding is most warped. BFS/OMH Inspector Butzen did not testify at the hearing. Complainants testified that he told them that he did not verify the warped siding against the manufacturer Cavco Industries or the dealer Mountainview Homes because, in his opinion, the warped condition of the siding resulted from improper installation of the skirting, which has allowed moisture to penetrate underneath the siding. According to Complainants, the skirting is not flush with the siding, has knotholes, is angled toward rather than away from the house, and is missing a piece that should have been installed between the skirting and the siding that would have prevented penetration of moisture. / / / /

/ / / / The Concrete Inspector Bagley testified that, although the cracks in the carport were within acceptable limits at the time of the first jobsite inspection,[6] by the time of the prehearing jobsite inspection the crack had opened up such that applicable standards required correction. Inspector Bagley also testified that, although he saw that someone had patched the areas of concrete in the carport that showed a void in the finish,[7] the patches did not properly adhere to the surface. This repair therefore was not acceptable. Finally, the cracks in the control joints were still within acceptable limits at the time of the prehearing jobsite inspection.[8] But areas of spalling had appeared around the radius of the control joints; these areas required correction. The Air Conditioner Inspector Bagley noted that the air conditioner’s fins were bent. He did not direct Respondent to correct this condition because fins bend easily and he saw no evidence that Respondent, as opposed to the dealer Mountainview Homes or the manufacturer Cavco Industries, was responsible for the bent fins. Complainants testified that the serviceman whom Respondent sent to install the air conditioner unit said it was supposed to be a new unit. But even he admitted that the unit that was installed looked beat up and that its fins were bent. He said he would get a new unit for Complainants, but never did. Aggravation The Citation and Complaint notified Respondent that, if it were found to be in violation of any statute, the Registrar might consider its prior disciplinary record of final agency orders in mitigation or aggravation. Notice is therefore taken of the Registrar’s official records, which show that, at the time of the hearing, the Registrar had suspended the licenses of both R D S Construction, Inc.[9] and Respondent[10] for failure to comply with final orders to perform corrective action based on proven violations of A.R.S. § 32-1154.A.2,[11] .3,[12] .7,[13] and .23.[14] The record of Respondent and of Mr. Tucker is deemed to be poor and is considered as a factor in aggravation of the penalties to be assessed for the violations proven here. The Registrar’s records also reveal that at least one of the final orders against a license on which Respondent’s qualifying party is listed was entered in a complaint involving the licensee’s installation of a manufactured home for which Mountainview Homes was the manufacturer or dealer.[15] CONCLUSIONS OF LAW In this administrative proceeding, Complainants bear the burden of proof and must establish statutory violations by a preponderance of the evidence.[16] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[17] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[18] The suspended status of Respondent’s license neither precludes Complainants from pursuing their administrative remedy nor precludes the Registrar of Contractors from conducting these disciplinary proceedings.[19] If the Registrar accepts these recommendations and Respondent does not comply with any portion of the Registrar’s order, the Registrar should revoke Respondent’s contractor’s license. In due course, this revocation will lead to the initiation of appropriate disciplinary action against any newly issued separate license on which Respondent, its qualifying party, or any of Respondent’s other members are listed.[20] Public Policy “The goals and objective of the registrar of contractors are to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in residential construction . . . .”[21] “[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.”[22] Similarly, “[t]he department of building and fire safety is established to further the public interest of safety and welfare by maintaining and enforcing standards of quality for manufactured homes . . . . It is also the purpose of the department to establish a procedure to protect the consumer of such products and services.”[23] The uncontroverted evidence establishes that the siding on Complainants’ manufactured home is warped and that the fins on their air conditioning unit are bent. No evidence was presented that Complainants caused either of these conditions. Yet Inspector Butzen declined on behalf of the Department of Building and Fire Safety/Office of Manufactured Housing to verify either of these items against the dealer or the manufacturer because he thought they were Respondent’s responsibility. And Inspector Bagley on behalf of the Registrar declined to order corrective action because he thought they were the dealer’s or manufacturer’s responsibility. This outcome frustrates both agencies’ mandates. Evidence was admitted that Respondent is at least partially responsible for the condition of the siding and the fins on the air conditioning unit. Moreover, Respondent is familiar with the statutes and regulations governing both agencies’ licensees. Its qualifying party has worked in the manufactured housing industry and has ongoing business relationships with both the dealer, Mountainview Homes, and the manufacturer, Cavco Industries. Respondent was selected by and contracted directly with Mountainview Homes, not Complainants. Finally, Respondent has chosen to use a license issued by the Registrar to undertake work regulated by the Department of Building and Fire Safety/Office of Manufactured Housing, which did not license and has no authority over Respondent.[24] As between these two parties, therefore, Respondent, not Complainants, should bear the risk of a conflict between the two agencies. The evidence therefore establishes that Respondent violated A.R.S. § 32.1154.A.7[25] with respect to the warped exterior siding and the bent fins on the air conditioning unit. To the extent that Mountainview Homes, Cavco Industries, or the licensed installer, if it is unrelated to Respondent, should be partially liable for these problems, Respondent may want to involve them in his corrective work or may seek restitution in a civil lawsuit or administrative claim.[26] The Effect of Complainants’ Acceptance of $715 in Partial Settlement of Their Claims

In October 1999, Inspector Bagley directed Respondent to resolve Complainants’ monetary disputes regarding charges for grubbing the land, cleaning up construction debris, and laying 200’ of water line.[27] Respondent was paid a total of $1,445.00 for these items, according to the August 3, 1998 bid.[28] Inspector Bagley also directed Respondent to perform corrective work with respect to the storm doors, concrete voids, cleanup, and level of the house.[29] In December 1999, Complainants refused to accept Respondent’s check for $300 because they did not want to accept that amount “for everything.”[30] Complainants demanded $717.00 to “take care of all except work pertaining to set-up.”[31] Respondent sent a check for $715.00 and Complainants cashed it.[32] Complainants later attempted to clarify that they intended their demand only as an offer to resolve disputes about money, not about workmanship, plus their claim for house-cleaning.[33] The term “settlement,” “[i]n legal parlance, implies a meeting of the minds of parties to a transaction or controversy; an adjustment of differences or accounts, a coming to an agreement.”[34] The evidence does not show any meeting between these parties’ minds. Since all the work described in Respondent’s bid to Mountainview Homes pertained to set-up, however, interpretation of Complainant’s demand as offering to settle only monetary disputes is not unreasonable.[35] Moreover, enforcement of the settlement according to Respondent’s interpretation would frustrate the purpose of the statutes that govern licensed contractors in Arizona and this action. The Remaining Issues Because the settlement does not bar any claims except the contract claims that Inspector Bagley directed Respondent to resolve by payment of money, the evidence establishes that Respondent violated A.R.S. § 32-1154.A.3,[36] .7,[37] and .23[38] with respect to its construction of and failure to repair voids in the concrete in the carport, the alignment of the manufactured house at the east end, the twisting of the interior beam, and other deficiencies attributable to its failure to install the house to be level. The evidence also establishes that Respondent violated A.R.S. § 32- 1154.A.3[39] and .7[40] with respect to the cracks in and spalling around the control joints in concrete in Complainants’ carport. The evidence does not establish any statutory violation with respect to the installation of the storm doors. The evidence does not establish that Mr. Green was Respondent’s employee. Even if he was, the evidence does not show that Complainants allowed Respondent fifteen days to complete repairs. Finally, Complainant Mr. Baugher’s admitted modification of the storm doors would have voided any warranty that Respondent otherwise might have been required to provide. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar revoke Respondent’s Class KB-02 license, No. 138572, on the effective date of his Decision and Order in this matter, thirty-five days after the date of service. It is further recommended that if, on or before the effective date of the Registrar’s Decision and Order, Respondent furnishes written confirmation that it has repaired or otherwise resolved the violations found at Conclusions of Law Nos. 7, 11, and 12 to Complainants’ satisfaction, no revocation take place and the Registrar may close Case No. M00-0258. Done this day, July 28, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The items about which Complainants complained that Inspector Bagley’s directive did not specifically address, which are apparently subsumed in No. 15 above, are living room window scratched on move-in; utility room door (inside) scratched on move-in; utility room and kitchen floor scratched on move-in; refrigerator dented and gouged – front and side; outside dryer vent bent; furnace filter & holder not in house upon move-in; and letter from Cavco includes repairs to be done by Respondent. The record does not contain any correspondence from Cavco that mentions Respondent. See Complainants’ Complaint to the Registrar. Complainants apparently abandoned these complaints against Respondent to the Registrar, perhaps because Inspector Butzen addressed them in the parallel proceeding before BFS/OMH.

[2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar.”

[4] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [5] In response to Respondent’s qualifying party’s cross-examination, Inspector Bagley testified that it was “possible” that the two halves of the manufactured house were different lengths, which would be a manufacturing defect. But no evidence was offered that anyone had actually measured the two halves or that they would not align correctly if the northeast corner of the house were raised.

[6] See Item #1 on the October 22, 1999 directive, set forth in Finding of Fact No. 15, supra.

[7] See Item #2 on the October 22, 1999 directive, set forth in Finding of Fact No. 15, supra.

[8] See Item #3 on the October 22, 1999 directive, set forth in Finding of Fact No. 15, supra.

[9] See Case No. 99-1493, Kellerhals v. R D S Construction, Inc.

[10] See Case No. P00-0026, Storey v. Granite Builders, LLC.

[11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”

[12] See Note 4, supra.

[13] See Note 2, supra.

[14] See Note 3, supra.

[15] See the Registrar’s Decision and Order in Case No. 99-1493, Finding of Fact No. 1.

[16] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[17] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[18] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[19] See A.R.S. § 32-1154.C.

[20] See A.R.S. § 32-1154.A.21; A.R.S. § 32-1101.A.5.

[21] Laws 1985, Ch. 334, § 1.

[22] Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981) (citation omitted).

[23] A.R.S. § 41-2141.A.

[24] Arizona statute defines the term “contractor” to be “synonymous with the term ‘builder’, and means a person, firm, partnership, corporation, association or other organization , or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, or purports to have the capacity to undertake to, submits a bid to, does himself or by or through others, or directly or indirectly supervises others to . . . [c]onstruct, alter, repair, add to, subtract from, improve, move . . . any building or other structure, project development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction[, c]onnect such structure or improvements to utility service lines and metering devices and the sewer line[, or p]rovide mechanical or structural service for any such structure or improvements.” A.R.S. § 32-1101.A.3. There is no question that Respondent acted as a contractor in performing the bid it submitted to Mountainview Homes.

[25] See Note 2, supra.

[26] See, e.g., Cactus Wren Partners v. Arizona Department of Building and Fire Safety, 177 Ariz. 559, 564, 869 P.2d 1212, 1217 (Ct. App. 1993), review denied (1994); Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). Respondent is not a party to Complainant’s complaints against Mountainview Homes and Cavco Industries pending before the Department of Building and Fire Safety and cannot be bound by its result; likewise, Mountainview Homes, Cavco Industries, and the licensed installer, if it is unrelated to Respondent, cannot be bound by the Registrar’s Decision and Order in this matter. See, e.g., Scottsdale Memorial Health Systems, Inc. v. Clark, 157 Ariz. 461, 466, 759 P.2d 607, 612 (1988).

[27] See Statement of Fact No. 15, supra, Item Nos. 7, 8, and 10.

[28] See Statement of Fact No. 7, supra, third, fifth, and sixth items.

[29] See Statement of Fact No. 15, supra, Item Nos. 2, 5, 11, and 12. Inspector Bagley did not direct any corrective work with respect to the concrete cracks, siding, air conditioning unit, spilled soda in a kitchen cabinet, or ventilation. See Statement of Fact No. 15, supra, Item Nos. 1, 3, 4, 6, 7, 9, and 13. Complainants at the hearing apparently abandoned claims based on the spilled soda and allegedly faulty ventilation.

[30] See Statement of Fact No. 22, supra.

[31] See id.

[32] See Statement of Fact No. 23, supra.

[33] See Statements of Fact Nos. 23 and 13, supra.

[34] Black’s Law Dictionary, supra, at 1372.

[35] Although Inspector Bagley on October 22, 1999 directed Respondent to “[c]lean up the house per contract,” see Finding of Fact No. 15, supra, Item No. 11, since Complainants had been living in the house since November 27, 1998, see Finding of Fact No. 11, supra, they may have decided to have it cleaned before December 27, 1999 and converted their claim to one for restitution or damages. In any event, neither party treated this particular claim as significant at the hearing.

[36] See Note 4, supra.

[37] See Note 2, supra.

[38] See Note 3, supra.

[39] See Note 4, supra.

[40] See Note 2, supra.

-----------------------

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