ALJDEC

00F-Y0025-ROC · Registrar of Contractors · 2000-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|MARk & MICHELLE MUNOZ, |§| | |Complainant, |§|CASE NO.: Y00-0025 | | |§| | |-v- |§|DOCKET NO.: 00F-Y0025-ROC | | |§| | |License No. 077145, Class B of |§|RECOMMENDED | |MAXALL CORPORATION (cORP), |§|DECISION AND ORDER | |Respondent. |§| | | |§| | | |§| |

HEARING: Tuesday, September 12th, 2000, at 8:30 a.m. APPEARANCES: The complainants, Mark and Michelle Munoz, appeared in their own behalf. The respondent appeared through Mr. John A. Weil, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston.

This matter came on for hearing on September 12th, 2000. Testimony was heard and other evidence admitted, and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent, Maxall Corporation, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 077145. 2. The complainants, Mark and Michelle Munoz, a married couple, purchased their newly constructed residential home in a Yuma, Arizona subdivision named Pioneer Park, in May of 1998. Their home was constructed by the respondent. 3. Complainants filed the instant complaint against the respondent on or about September 9th, 1999. The complainants listed four items to their complaint as follows: “1) No reveal to protect dry-wall on back patio. REF Code 2511 Sect. 224 2) No insulation in exterior garage walls 3) Concerned over crack on back patio appears concrete is sinking. 4) Inop - light switches loose wires in outlets.” 4. Registrar of Contractor’s Inspector Mr. C. E. Jorgensen conducted a job- site inspection of the complainants’ home, and issued a Corrective Work Order dated September 20th, 1999. Relative to the four items, the CWO determined as follows: “1. Back patio: Contractor to properly finish west end of rear patio meeting any applicable codes that may apply. Garage insulation, exterior garage wall: No work for contractor on this item, R-19 not required on exterior garage walls. Should complainant wish to pursue this item, it should be through the hearing process. 3. Patio concrete crack at west patio column: Contractor to determine cause and properly repair. Half moon cracking indicates improper footing at column or lack of proper isolation joints at footing - Minimum Workmanship Standards Sixth Edition/ March 1996 page 13, #4. 4. Electrical, light switches, loose wires: Contractor to take whatever steps necessary so electrical throughout residence functions as it was intended.” 5. At the commencement of the administrative hearing, the parties stated for the record that the respondent had completed items ##1 and 4 to the satisfaction of the complainants. 6. The parties further stated they were agreed that the respondent should be allowed an additional 30 days from the date of the hearing to determine the cause of the concrete cracks in item #3. Respondent desires to excavate around the patio column down to the footing and have an engineer inspect and perform tests at the area in order to determine the cause of the cracking. Once that operation is performed the parties agree that whether or not the respondent is responsible to correct this item will be more conclusively answered. Respondent agrees to correct the item if it is seen to be its defect, but is not prepared at this time to concede that the cracking is a result of its defective workmanship. Complainants agreed to allow the respondent this opportunity. Complainants further agreed that any request from them to the Registrar to re-open their complaint as to this single item will be filed by them within 60 days of the hearing. Therefore, no evidence was heard as to item #3 of the CWO. 7. Thus the only remaining item of the complaint and CWO the complainants wished to have heard was item #2, regarding the issue of what sort of insulation should have been installed in two of the four walls of their garage. 8. A floor plan of complainants’ house was admitted into evidence, and the four walls of the garage were identified and marked. Walls numbered 2 and 3 of the garage have on their opposite sides rooms of the complainants’ house, and inside garage walls 2 and 3 is R-19 fiberglass insulation. Walls numbered 1 and 4 of the garage have on their opposite sides the outdoors, and inside them is foam board or blue board insulation. Foam board insulation has a lower insulation factor than R- insulation. 9. Complainants contend that the respondent should have installed R-19 fiberglass insulation in all four walls of the garage. Respondent contends that only foam board insulation was called for in the two walls separating the garage from the outdoors. 10. Complainants rely heavily on a document they were given by the agent selling them the house, and not by the respondent. It is evidence in this case. It is a document listing the “Standard Items” of the house. It lists under the topic “ENERGY SAVERS” item #6 “R-19 Exterior Wall Insulation.” Under its heading “”EXTERIOR AMENITIES” it lists “Finished Garage Walls (included Exterior Wall Insulation).” 11. Respondent relies in part on the contract between the parties. The contract is silent as to what sort of insulation is called for in any wall. 12. Respondent provided the testimony of Mr. William Lee. Mr. Lee is a professional insulation contractor with 30 years of experience in the industry. He is licensed by the Arizona Registrar of Contractors. He does work for respondent’s construction projects, including in homes of Pioneer Park, and including complainants’ home. He testified that installing R-19 insulation in walls 1 and 4 would have made no sense. The garage ceiling was not insulated so it would have contributed nothing to the insulation factor of the garage to have installed R-19 insulation is all four walls. 13. Mr. Lee further pointed out as to the complainants’ exhibit that the section of it covering the R-19 insulation on the exterior walls comes under the heading of energy savers. He pointed out that providing R-19 insulation on walls numbered 1 and 4 of the garage would not save any energy at all because whatever insulation is in those walls does not and would not insulate the rooms of the dwelling that are heated and cooled.

14. There does not appear to be sufficient evidence to find that the parties contracted for the installation of R-19 fiberglass insulation in walls 1 and 4 of the garage. The contract in evidence does not mention the insulation specifically, but only alludes to “VA approved plans and specifications.” (See: Resp. Ex. A., page 1, para. 19.) Those plans and specifications are not in evidence. 15. It is true that there is some degree of ambiguity in the pamphlet page given to the complainants. But that is not part of the contract and it was not drafted or supplied by the respondent. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. (The Citation and Complaint lists these three subsections, but then goes on to state the language of subsections 6., 23., and 3. It is concluded, based on the evidence and stated understanding of the parties, that the listing of subsection 6 in the Citation and Complaint was in error.) 3. Complainants have the responsibility to carry the burden of proof. They must prove their case by a preponderance of the evidence. A.A.C. R2-19- 119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is the “preponderance of evidence”). 4. At this time there can be no conclusion that the respondent violated any of the cited statutory subsections relative to this complaint. Items ##1 and 4 of the CWO were corrected. There was insufficient evidence to conclude that the Inspector was in error in finding no contractor responsibility to alter the type of insulation of the house, which is addressed at item #2 of the Corrective Work Order. Lastly, both parties agreed to withhold any administrative hearing and order of the Registrar of Contractors as to item #3 of the CWO in order to give respondent an opportunity to reveal more about any condition that might be the causative factor of the concrete cracks. 5. As agreed by the parties, complainants should be allowed 60 days from the date of the hearing, or November 11th, 2000, to re-open their complaint regarding the concrete cracking, in the event they remain dissatisfied with the respondent’s workmanship relative to item #3 of the CWO. RECOMMENDED ORDER In view of the foregoing, it is hereby recommended that Citation and Complaint number Y00-0025 be closed (subject to complainants’ re-opening their complaint as to the concrete cracking on or before November 11th, 2000). Done this day, September 22nd, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488