ALJDEC

00F-P0120-ROC · Registrar of Contractors · 2000-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On May 24, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Complainant Virginia Buckland appeared on her own behalf. Shaun Finch appeared on behalf of Skyline Construction, Inc. 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. Peter and Virginia Buckland are the owners of a home (the “Home”) located in Nutrioso, Arizona. Shawn Finch is the president and qualifying party for Skyline Construction, Inc. (the “Respondent”). On or about May 18, 1999, the parties entered into a written contract (the “Contract”) for the Respondent to build the Home.

2. In December of 1999, the Respondent was released from the Contract. The Home is still not completed. The Complainant testified that the Home’s doorways are too short, the Home’s windows are too low, one exterior wall is bowed, and the Respondent failed to construct the Home’s front deck.

3. On or about December 16, 1999, the Complainant filed a Complaint with the Registrar of Contractors (“ROC”). On or about December 20, 1999, ROC Inspector Bernie St. John scheduled a jobsite inspection for December 29, 1999 at the Home.

4. On or about December 30, 1999, ROC Inspector St. John issued a Corrective Work Order ("CWO") to the Respondent requiring the following corrective action: 1. Inferior construction a. Doorways too short. The doorway framing will not accommodate a 6’8” door as framed. Rough openings for doors must be properly dimensioned plumb and level. The rough openings should be reasonably close to the manufacturer’s recommendations.

b. Bowed exterior walls. The left hand sidewall is ½” out of plumb in 8’. Walls are to be perpendicular within ¼” in 10’, per minimum workmanship standards. c. Windows too low. Windows as shown on drawing elevation page are not installed per view. Contractor to contact building designer and install per his intended dimensions. Windows are not tempered glass and will require a higher position if they are to be used. . . . 2. This item was added at jobsite. Both parties agreed that it was to be heard at the jobsite. The porch is not constructed as per verbal change order. A written change order is to be prepared where both parties agree. Contract states that changes will be done per written change order.

See CWO, dated December 30, 1999.

5. William C. Wiltbank is a Building Inspector for Apache County. Homer Rogers is a Building Official for Apache County. They inspected the Home on December 29, 1999. On April 25, 2000, Inspector Rogers wrote a letter summarizing the results of the December 29, 1999 inspection. See Complainant’s Exhibit 1. Inspector Rogers found the following: a. All windows except those next to the door did not meet code. b. All outside doors required a head clearance of 6’8”. c. The last item was the deck. . . . There needed to be landing a minimum 36” x 36” level with a finish floor on the inside.

6. County Inspector Wiltbank testified that the Home’s windows do not meet the requirements of the Uniform Building Code because they are too low. Inspector Wiltbank testified that the windows would meet code requirements if they were made with “tempered” or “safety glazed” glass. County Inspector Wiltbank further testified that the deck can be up to 8” below the Home’s floor level if the door does not swing over the landing.

7. ROC Inspector St. John retired prior to the hearing in this matter. On May 18, 2000, ROC Inspector Warren Duncan inspected the Home. Inspector Duncan testified that the doorways will now accommodate a 6’8” door. However, Inspector Duncan testified that he measured from the sub or rough floor. Inspector Duncan testified that the doors will fit only if a vinyl floor is installed at the Home. Unfortunately, the Complainant testified that she wants to install a thicker pine floor.

8. Inspector Duncan testified that the Home’s exterior side wall is bowed. Inspector Duncan testified that this wall does not meet industry standards. However, Inspector Duncan testified that this problem can be corrected by floating out the stucco using a three coat system.

9. Inspector Duncan testified that the windows are too low per the requirements of the Uniform Building Code. Inspector Duncan testified that the Home’s blueprints were drafted by a draftsman who is not an architect. Inspector Duncan testified that the blueprints did not include dimensions for the windows. Inspector Duncan testified that the blueprints only included a scale. Inspector Duncan testified that the size of the windows do not correlate with the scale. However, Inspector Duncan testified that the industry custom is to place the top of the windows level with the top of the doors. Inspector Duncan testified that the Respondent placed the top of the windows about 6 inches below the top of the doors.

10. Inspector Duncan testified that he could not express an opinion on the Home’s front deck because the parties never prepared a written change order as required pursuant to the CWO, dated December 30, 2000. However, Inspector Duncan testified that the Respondent’s work on the Home’s windows and the bowed exterior wall did not meet industry standards and showed poor workmanship by the Respondent.

11. The Home’s blueprints were drafted by David F. Dean of D.F. Dean and Company. Mr. Dean is not an architect. Mr. Dean wrote a letter to Mr. Finch stating that the blueprints were not scaled because they were only “intended to give a general idea of the type of windows desired.” See Respondent’s Exhibit A. Mr. Dean further wrote that the “vertical placement of the windows was left to the discretion of the builder.” Id.

12. Mr. Finch testified that the blueprints failed to provide dimensions for the vertical placement of the Home’s windows. Mr. Finch testified that he did the best that he could under the circumstances. Mr. Finch testified that it was difficult to communicate with the Complainant because she was in England. However, the Complainant testified that Mr. Finch could always reach her when he needed more money.

13. Scott Cray is the owner of Upright Builders. Mr. Cray submitted a bid to complete the Home after the Respondent was released from the Contract. Mr. Cray testified that the failure of the draftsman to include dimensions on the Home’s blueprints certainly made this project more difficult. However, Mr. Cray testified that the blueprints’ elevation views clearly show that the top of the windows should have been placed above the top of the Home’s doors. Mr. Cray testified that a contractor should always communicate with a homeowner when the blueprints are not clear. Mr. Cray testified that the windows look fine from the outside. However, Mr. Cray testified that the Complainant’s picturesque view of the mountains from inside the Home is diminished (i.e., the tops of the mountains are cut off). See Complainant’s Exhibit 3.

14. Mr. Cray testified that the Respondent also should have asked the Complainant about the type of flooring that would be installed in the Home. Mr. Cray testified that the type of flooring is always a factor to consider in framing a door. Mr. Cray testified that the easiest way to correct the doors, windows and porch problems at the Home is to lower the Home’s floor.

15. The Complainant testified that the Home’s front deck was supposed to be built without steps from the front door to the deck. The Complainant testified that the blueprints show the deck at the same level as the Home’s floor level. The Complainant testified that a deck built below the Home’s floor level would be a violation of the Uniform Building Code. See Complainant’s Exhibit 1(Homer Rogers’ letter).

16. Mr. Finch testified that the parties agreed to place the deck lower than the Home’s floor level with three steps leading down to the deck from the Home’s front door. The Complainant denied that there was such an agreement.

17. The Complainant requested that the Respondent’s license be disciplined and that her Home be completed. The Complainant testified that she was especially dissatisfied with the placement of the windows. The Complainant testified that she cannot see the tops of the nearby mountains when she peers out the Home’s windows because the windows are too low. See Complainant’s Exhibit 3.

18. The undersigned Administrative Law Judge finds that the Respondent failed to construct the Home in a professional and workmanlike manner. The undersigned Administrative Law Judge finds that the Respondent failed to meet industry standards by placing the top of the Home’s windows 6 inches below the top of the doors. This was contrary to industry custom, the blueprints’ elevation views and the wishes of the Complainant. The undersigned Administrative Law Judge further finds that the Home’s doors were not framed to the proper height and the exterior wall is bowed beyond acceptable industry standards. Finally, the undersigned Administrative Law Judge finds that the deck should have been built at the same level as the Home’s floor level as required by the Uniform Building Code.

19. The undersigned Administrative Law Judge finds that the Respondent’s poor workmanship has caused substantial harm to the Complainant. Mr. and Mrs. Buckland are currently living in a trailer on the site because their Home is not finished. The undersigned Administrative Law Judge further finds that the Respondent has failed to comply with the CWO, dated December 29, 1999. The Respondent has failed to properly correct the Home’s windows, doors, the bowed exterior wall and the front deck.

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 violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #18.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #19.

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)(10). Insufficient evidence was presented on this issue.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #19.

6. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class KB-01 license pursuant to A.R.S. §32-1154. The undersigned Administrative Law Judge further concludes that grounds exist to impose a civil penalty against the Respondent pursuant to A.R.S. §32-1154(B) & (D). RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class KB-01 license be suspended until the Registrar receives proof that the Respondent has caused a properly licensed contractor to perform the following corrective work: a. The Home’s doorway framing should accommodate a 6’8” door and the installation of the flooring selected by the Complainant; b. The Home’s bowed exterior wall shall be corrected to meet industry and code standards; c. Windows are installed too low. Windows shall be corrected to meet code and industry standards; and d. Front deck shall be installed level to the Home’s floor level.

It is further recommended that if Respondent causes a properly licensed contractor to perform the remedial work on or before the Order’s effective date, then no license suspension shall be imposed. It is further recommended, in addition to the foregoing license suspension, if any, that the Respondent’s Class KB-01 license be placed on a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154(D). The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. Done this day, June 13, 2000

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 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