ALJDEC

01F-2163-ROC · Registrar of Contractors · 2002-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2001 and January 28, 2002 APPEARANCES: Complainant Joel Goldstein appeared on his own behalf. Attorney Denise Troy represented Respondent Edmunds Toll Construction Company. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Edmunds Toll Construction Company is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent Edmunds Toll Construction Company (“Edmunds”) is the holder of a Class B license (No. 113644) issued by the Registrar of Contractors (“ROC”). 2. Complainant Joel Goldstein and his wife Regina (the “Goldsteins”) purchased a newly constructed home from Edmunds. 3. In a complaint to the ROC dated February 24, 2001, the Goldsteins alleged several deficiencies in the construction of the home, as well as several wrongful acts, for which they believed Edmunds was responsible.[1] 4. Specifically, the Goldsteins alleged as follows: a. Casita shower leak; b. Defective and wrong grout color in bathroom #2 at tub edge; c. Damaged toe plates and cabinet door; d. Incomplete repairs to fireplace chimney water leak; e. Incomplete and wrong color outside painting; f. Warped front door; g. Front door threshold water leak; h. Water leaks around arcadia sliders; i. Laundry room trim finishing unacceptable; j. Pantry door finish unacceptable; k. Noises in laundry room sink and surrounding walls; and l. Frequent slow flushing, slow refilling, and clogging of powder room and master bath toilets.

5. As of the time of the commencement of the hearing, items b, c, d, e, and l had been resolved. 6. On May 8, 2001, the Goldsteins filed 26 additional items of complaint against Edmunds with the ROC, some of which are duplicative of the original items of complaint. 7. Specifically, the Goldsteins alleged as follows: i. Arcadia (slider doors, 6) leaks; ii. Casita shower pan/tile/grout discoloration/wicking problem; iii. Pantry door replacement; iv. Master bedroom window leak; v. Front door repairs/replacement, and leak; vi. Front door threshold grout; vii. Damage to cabinet toe kicks and cabinet door; viii. Bathroom #2 tub/tile joint grout; ix. Grout repairs and staining to match existing stained grout; x. Post construction, retrofit hose bib addition; xi. Patios: tar, glue, paint, adhesives, etc., stains and spots; xii. Slider frames: gouged, nicked, scratched, bent, stained, interior and exterior. Frames not sealed to interior drywall; xiii. Glass/windows: scratched and nicked to several sliders and adjacent windows; xiv. Grout: new cracks adjacent to walls and sliders; xv. Water damage in casita, damaging walls, baseboards, carpet tack strip, pad and carpet; xvi. Window treatment: smears on cellular; xvii. Carpets: stains and soil throughout; xviii. Screen doors: damaged and/or torn; xix. Baseboard separations; xx. Grout residue; xxi. Adhesive damage to newly refinished front door frame; xxii. Spa: electrical switch disconnected and possibly damaged; xxiii. Damage and destruction of landscape; xxiv. Damages to roof flashing; xxv. Silt and debris in spa and equipment; and xxvi. Patio furniture coated with stucco dust and debris.

8. At the time of the hearing, 10 of the above items had been resolved, specifically, items vii, viii, xiv, xvi, xviii, xx, xxii, xxiii, xxv, and xxvi. 9. ROC Inspector Bob Davies investigated the Goldsteins’ complaint. 10. Inspector Davies scheduled a jobsite inspection for March 29, 2001. The Goldsteins and an Edmunds representative were present for that inspection. 11. On March 29, 2001, following the jobsite inspection, Inspector Davies issued a Corrective Work Order (“CWO”) under which the ROC gave Edmunds 15 days to take specified corrective action with respect to several items of complaint. 12. On April 19, 2001 Inspector Davies conducted a second jobsite inspection. The Goldsteins, a representative from Edmunds, and Ralph Williamson, a tile expert, were present for this inspection. 13. On April 20, 2001, as a result of the April 19, 2001 inspection, Inspector Davies issued a second CWO under which the ROC gave Edmunds 15 days to take specified corrective action with respect to several items of complaint that had yet to be resolved. Most of the corrective action specified in the April 20, 2001 CWO had previously been addressed in the March 29, 2001 CWO. 14. The hearing of this matter commenced on November 26, 2001. Because of the inability to conclude the presentation of all of the evidence, the hearing was adjourned and reset for further hearing on January 26, 2002. At the commencement of the further hearing, the Administrative Law Judge inquired of the Goldsteins as to what issues remained in dispute, to which they replied as follows: 1) arcadia sliders - water intrusion; 2) front door - water intrusion; 3) pantry door; 4) casita shower; 5) retrofit hose bib; 6) carpet stain; 7) trim around pantry; 8) casita carpet not cleaned; and 9) casita carpet pad. 15. The Administrative Law Judge addresses, in turn, each of the foregoing items. Arcadia Slider Doors 16. Mr. Bob Flaherty, Edmunds’ Project Manager, testified at hearing that Edmunds had performed the latest in a series of remedial attempts approximately two weeks prior to the further hearing date. Mr. Flaherty testified that a new seal has been applied which takes approximately two weeks to cure and the arcadia doors may be water tested on the day following the further hearing. Consequently, at the time of the further hearing, Mr. Flaherty did not know whether the arcadia slider doors continue to leak. However, Dr. Goldstein credibly testified that the doors continue to leak. The evidence of record established that despite many remedial attempts, Edmunds has been unsuccessful in repairing the leaking arcadia slider doors. Front Door 17. The evidence of record established that despite repeated attempts at remedying the leaks, and despite Edmunds having replaced the front door on at least three separate occasions, the front door continues to leak. Until recently, the majority of the water penetration occurred through the threshold. However, it was recently discovered that water penetration occurs through the door hardware. Mr. Rich Schoonmaker, Assistant Vice- president for Edmunds, testified at hearing that Edmunds will replace the Goldsteins’ entire front door entry system with all new components. Pantry Door 18. The evidence of record established that the face of the pantry door originally installed by Edmunds was damaged and chipped. Edmunds replaced this pantry door. However, the detail of the door was different from the original, and the door itself was substandard due to chatter marks. Consequently, Edmunds replaced the pantry door a second time. The Goldsteins remain dissatisfied with the replacement of the pantry door. Mr. Goldstein credibly testified at hearing that the finish of the door is unacceptable because it contains very noticeable brush marks. Casita Shower 19. The evidence of record established that the Goldsteins’ initial concern with the casita shower was a discoloration of the grout inside the shower. The Goldsteins contend that the grout discoloration was due to the presence of a leak within the shower walls. 20. Inspector Davies determined, at the time of the initial jobsite inspection, that: It was not established to the satisfaction of the inspector that leakage is present and it appeared that discoloration of the grout was only on top surface. At this time no conclusive evidence has been presented to show contractor error or that Minimum Workmanship Standards have been violated. Source of discoloration is unknown and in the spirit of good customer relations, contractor agreed to continue to attempt to determine the cause and if it can be subsequently shown that leakage, seepage or defective grout is causing the condition, then correction by appropriate means would be required. In absence of evidence to support error or failure, no action is required by contractor.

21. Despite no obligation to do so, Edmunds elected to remove the casita shower and is in the process of replacing it. This work began on or about January 21, 2002. Mr. Flaherty testified that Edmunds agreed to replace the casita shower because short of replacement, the issue would not have been resolved to the Goldsteins’ satisfaction. However, it is Edmunds’ contention that it removed a perfectly good shower. The Administrative Law Judge finds that because Edmunds has voluntarily undertaken the responsibility of replacing the casita shower, Edmunds must perform such replacement in a professional and workmanlike manner. Hose Bib 22. The evidence of record established that on or about March 6, 1999, after the final walk through, the Goldsteins informed Edmunds that it had failed to install a hose bib. The evidence of record further established that Edmunds failed to rectify the missing hose bib prior to when the Goldsteins’ hardscape/landscape was installed, approximately one month later. 23. Mr. Flaherty stipulated to the fact that Edmunds inadvertently omitted installing a hose bib at the Goldsteins’ residence as required by the plans and specifications. Edmunds attempted to rectify the situation by installing a retrofit hose bib. However, upon discovering that the hardscape had already been poured, Edmunds realized it had three options for the installation of the retrofit hose bib. The first option was to run the water lines through a wall. The second option was to run the water lines overhead through the ceiling. The third option was to jack hammer the entire concrete patio, lay the water lines underground as they were supposed to have been laid, and repour the concrete. Mr. Flaherty admitted at hearing that the Goldsteins were only given the first two options for the retrofitting of the hose bib. 24. The Goldsteins opted to have the water lines run through a wall in the house. The evidence of record established that by virtue of the retrofit, when the outside hose is on, an annoying whining noise is heard within the home. 25. The evidence of record established that as of a few weeks prior to the further hearing date, Edmunds offered to tear out the Goldsteins’ patio and install the hose bib in its original intended location and then repour the concrete patio. Therefore, the Administrative Law Judge finds that Edmunds is now working in good faith with the Goldsteins to rectify its mistake. Carpet Stain 26. The Goldsteins allege that there is a dark spot on their carpet attributable to employees of Edmunds. Inspector Davies testified that there is a carpet stain, however, he could not determine how the stain occurred or who caused it. The Goldsteins submitted two photographs of the carpet stain into evidence. See Exhibit 7. The Administrative Law Judge finds that the Goldsteins presented sufficient evidence only to prove that a stain exists. The Goldsteins failed to present sufficient evidence to prove that the stain is attributable to Edmunds. Pantry and Laundry Room Trim 27. The Goldsteins allege that the laundry room and pantry door trim finishing is unacceptable. The Goldsteins failed to present any evidence on this point. Further, the March 29, 2001 CWO issued by Inspector Davies indicated that the trim was determined to be within minimum standards and that no action was required of Edmunds. Casita Carpet Cleaning 28. The Goldsteins allege that Edmunds failed to clean the casita carpet after Edmunds had performed work in the casita which resulted in soiling. 29. Mr. Flaherty stipulated that Edmunds will clean the casita carpet after it has completed its work on the casita shower. The Administrative Law Judge finds this offer reasonable and logical in light of the fact that it does not make sense to clean the carpet while work is being performed in the casita, due to the potential for further soiling. Casita Carpet Pad 30. The Goldsteins allege that when Edmunds replaced a small portion of the carpet pad under the carpet in the casita, they did so with a different carpet pad than the original. The Goldsteins further allege that the carpet pad is substandard and not as thick as the original. The Goldsteins submitted into evidence a sample of both the original and replacement pad. See Exhibit 21. 31. Mr. Flaherty credibly testified that the replacement pad is the same as the original, however, the manufacturer has changed the color of the pad. 32. The Administrative Law Judge finds that with the exception of the difference in color, the pads are substantially the same. CONCLUSIONS OF LAW In this proceeding, The Goldsteins bear the burden to prove, by a preponderance of the evidence, that Edmunds is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its June 4, 2001 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Edmunds with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, from the evidence presented, that Edmunds failed to perform portions of its work in a professional and workmanlike manner as evidenced by the ongoing leaking of the arcadia slider doors and the front door, and the retrofit hose bib. Therefore, Edmunds violated A.A.C. R4-9-108, and in turn violated A.R.S. § 32- 1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes, from the evidence presented, that Edmunds attempted in good faith to comply with the ROC’s March 29, 2001 and April 20, 2001 Corrective Work Orders, as evidenced by its continual efforts at remedial work. Therefore, the Administrative Law Judge concludes that Edmunds did not violate A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Edmunds committed several wrongful acts that substantially injured the Goldsteins, including (1) constructing their home in such a away as to have continual leaks at the arcadia slider doors and front door, (2) failing to install the hose bib per plans and specifications, and failing to give the Goldsteins the option of having it installed in its intended location, and (3) failing to install the pantry door in a professional and workmanlike manner. Therefore, Edmunds violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Edmund’s license. The ROC’s June 4, 2001 Citation and Complaint advised Edmunds that in the event of a finding of a violation against it, Edmunds’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Edmunds in the ROC’s official records. Those records revealed that Edmunds has not been the subject of any ROC disciplinary orders within the past two years. The Administrative Law Judge considered this disciplinary record as a mitigating factor when determining appropriate recommended discipline for this matter. The Administrative Law Judge further considered Edmunds’ continual efforts at remedial work and its attempts to satisfy the Goldsteins, as evidenced by Edmunds’ voluntary removal and replacement of the casita shower, as mitigating factors when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Edmund’s Class B license. 12. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Edmund’s license without providing a condition to reduce or eliminate same. 13. The Administrative Law Judge concludes that it is reasonable to condition Edmund’s license suspension upon performance of appropriate and effective remedial work to the arcadia slider doors, the front door, the pantry door, the hose bib, and the casita shower. The Administrative Law Judge includes the casita shower in the foregoing list because Edmunds has undertaken the task of removing and replacing the casita shower, and therefore must do so in a professional and workmanlike manner. RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing 45 days after the effective date of the Order entered in this matter, that Edmund’s Class B license shall be suspended until the ROC receives written proof that Edmunds has accomplished appropriate and effective remedial work to the arcadia slider doors, the front door, the pantry door, the hose bib, and the casita shower. It is further recommended that if Edmunds accomplishes the above- described corrective work on or before the deadline date of the Order entered in this matter, then the aforementioned license suspension shall not take place and Case No. 01-2163 shall be closed.

Done this day, February 11, 2002.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of February, 2002, to:

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

By ___________________________

----------------------- [1] On May 8, 2001, the Goldsteins filed additional items of complaint against Edmunds with the ROC. At the commencement of the hearing, counsel for Edmunds did not object to including those additional items within the scope of the hearing.

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