ALJDEC

01F-A0209-ROC · Registrar of Contractors · 2001-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2001in Prescott, Arizona. APPEARANCES: Complainant Steven Reinhart appeared, representing himself. Mark Temple appeared for Respondent Temple Builders, Inc., which was represented by Bruce E. Rosenberg, Esq. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors. Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B- license issued by the Registrar of Contractors (Registrar). 2. Respondent was the contractor for a new home, a second residence for Complainant, located in Prescott, Arizona. 3. In December 2000, Complainant filed a formal complaint with the Registrar alleging complaints against Respondent’s work on the home. There were ten problems noted. 4. As a result of receiving the complaint, Registrar’s Inspector (Inspector) Cliff Frandsen scheduled a site inspection, which was then rescheduled two times to accommodate schedules. 5. On January 31, 2001, a Corrective Work Order (CWO) was issued regarding certain items required to be repaired or corrected. The french doors were indicated to be not functioning as intended due to direct excess water not allowing this portion to be habitable, and the Respondent was directed to remove and replace the defective french doors [Item 1]. Wood floors were indicated to have some deficiencies in the kitchen, living room, and at french doors [Item 3]. The master bedroom fireplace was indicated to not be drafting properly and the Respondent was directed to correct this condition [Item 10]. Several items had been repaired or corrected [Items 2 and 4]. Two items needed a check to ensure correct functioning or to code: hot water tank leak (Item 6) and wire size on well pump (Item 9). No action was required on several items: garage concrete floor (Item 5), master bedroom floor squeaks (Item 7), key for front door lock (Item 8). Pursuant to the CWO, Respondent was required to make corrections within fifteen days. 6. The corrective work was not completed and the matter did not get resolved in that time period. Attempts to have the work done were met with delays and scheduling problems of the parties. 7. Respondent and Complainant each wrote to the Registrar’s Inspector regarding the work, the CWO and some disagreements with the determinations. In April 2001, Complainant wrote to the Registrar’s Inspector requesting that the matter proceed to hearing. 8. On May 2, 2001, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23 and 32-1154.A.3, specifying Arizona Administrative Code (A.A.C.) R4-9-108. 9. On May 10, 2001, Respondent filed its written answer, indicating it disputed certain of the CWO items because the Registrar’s Inspector did not have full and complete information, because some of the items were more properly homeowner maintenance items, and because the homeowner had neglected the home during certain times of the year with extreme weather. Respondent states that it had fixed the items within their actual responsibility. 10. The matter remained unresolved, and was forwarded for formal administrative hearing. 11. The items remaining at issue at the time of the hearing were as follows: a. French doors; b. Inadequate drainage on North side of home (standing water), and South side (exposing pipes); c. Wood floors areas; d. Paint on certain roof /metal areas; e. Squeaks in master bedroom floor; f. Lost and unreplaced special order key; g. Fireplace in master bedroom not drafting properly. 12. As to the French doors, the Registrar’s Inspector had ordered removal and replacement. The Registrar’s Inspector testified that he did not open the french doors, but could see the problems. See Hearing Exhibit A. The Registrar’s Inspector testified that the floor adjacent to the doors had had some moisture penetration, but that gutters would not have prevented the entire problem at that location with two roofs converging at that location, and that there should have been some covering (mentioning, shed roof) over the door. 13. As to drainage, the Registrar’s Inspector testified that there are problems in two areas: front by the door and in rear by the septic. Registrar’s Inspector testified that the Respondent had indicated it had brought in additional dirt to cover the pipe but that, at pre-hearing inspection, the pipes (septic and propane) were again exposed. Registrar’s Inspector testified that, in the front, the slope is such that there is no other place for the water to drain, that it’s water from all sources ponding there (general rain and roof run-off) and that there should have been a provision for drainage there to prevent damage to the foundation. 14. As to the wood flooring, the Registrar’s Inspector testified that the repair that was done in at least one area was unacceptable and was not within workmanship standards. 15. As to the paint peeling, the Registrar’s Inspector testified that the roof’s valley material was still chipping off in different areas of the material. 16. As to the fireplace, the Registrar’s Inspector testified that they had lit a fire at the job site inspection, and that smoke kept blowing back into the room and set off the smoke alarms. 17. The Registrar’s Inspector testified that the first site inspection had been done in December 2000, and that there may have been things he did not observe at that time but had accepted the parties’ word and then had again recently discussed the item with the parties. The Registrar’s Inspector testified that he had not found the master bedroom floor to be squeaking, had determined that the keys that Complainant was given for the front door did function, and was told the fireplace flue had been extended as corrective action. The Registrar’s Inspector testified that he had been told that there had been roof design changes, but that he had never been given or shown the blueprints. Registrar’s Inspector testified that water onto a patio or door was neither excess use or abnormal use but could be detrimental to the house, and that a contractor should know there was potential for that detriment or failures, but also agreed that homeowner neglect would be a problem. 18. Complainant testified he had raised the problems with the door not functioning properly early on, and that it could have been taken care of under manufacturer’s warranty had Respondent taken care of it earlier. Complainant testified that the doors were not manufactured to withstand the wind and water conditions existing at that location, and that he had not been told about the option of gutters until after construction and the problems had begun. Complainant testified that he had not put gutters on because they had been confused on why they had not been given gutters per the construction contract and that he had gotten legal advice[1] to not do anything in that arena until this ROC matter was taken care of. 19. Complainant testified that the contract calls for water to flow away from the home and it does not flow away from the home. Complainant testified that the contract does not mention gutters to take care of this problem, and that whatever new dirt had been added had washed away. Complainant argues it was wrong for Respondent to not have anticipated the water run off problems with the roof design, locations of doors, and setting of the house/slope of the land, and, therefore, not to have included gutters in the contract. 20. Complainant testified that several areas of the wood flooring had buckled or cracked or separated, and that the kitchen repair was unacceptable. Complainant testified that he had asked about care and maintenance for the wood flooring and that he had not been told of any problem with temperature changes. 21. Complainant testified that the master bedroom floor does not squeak when the humidity and moisture content of the air are high, but squeaks so much at other times that they cannot walk in the bedroom. 22. Complainant testified that the keys they seek to have replaced were the original solid brass keys that came with the special ordered door hardware and that they had then been given a much cheaper set of keys. Complainant testified they feel entitled to have what they paid for. Complainant testified that they had given the entire new door hardware with keys to Respondent, and that they had been told that the keys were left in a truck that Respondent had sold. 23. Respondent presented testimony that his project supervisor, Todd Starr, had not been told of any problems with the flooring or doors, and that there had been conversations about the possible need for gutters. Respondent’s supervisor testified that it was his impression that Complainant was going to take care of gutters himself. Respondent’s supervisor testified that someone had told him that the special order keys had been in a truck that had been sold. Respondent’s supervisor testified that the County inspects or approves for drainage and that is a part of the county permitting process. 24. Respondent presented testimony regarding the french doors, from J.D. Blocker (Door and Window Store), that the doors selected were not of a type to withstand the water and snow conditions at that location. Mr. Blocker opined that the doors were extremely weathered by February 2001 [when he had come to look at them], and that replacement with the same type doors would lead to the same result unless there were changes made to direct the conditions away from the door. Mr. Blocker testified that other doors have higher infiltration ratings and that a higher rated door would likely be more appropriate given the conditions at that location. Mr. Blocker testified that the door had been sealed on all sides and then the sweep/weather stripping installed. Mr. Blocker testified that an adjustable aluminum door threshold is in the (door) framing which threshold is adjusted to meet the bottom of the door which has weather stripping on it. Mr. Blocker testified that this stripping is approximately one-half inch rubber which expands (apparently with the fit of the door, or as the door is closed). 25. A gutter contractor testified that he had been called out, maybe two years ago, by the homeowner to give an estimate, and that he had done this bid himself. The gutter contractor testified that he would have left a business card with the homeowner with the bid on the card.[2] The gutter contractor testified that he had later been called by the Respondent as to whether he had given an estimate, and provided this bid information to the Respondent. 26. Respondent argued that Complainant was advised before the County’s inspection and advised by his professional inspector that gutters were strongly advisable in order to prevent water damage and erosion or drainage problems. Respondent argued that Complainant had not mentioned the doors as being a problem until a lengthy time had passed with Complainant’s neglect of the problems. Respondent inferred, in testimony, that Complainant had selected these doors for the home. Respondent argued that Complainant had neglected several items around the home, and that lack of proper homeowner maintenance was really the cause of several of the problems. Respondent argued that, after three years, with Complainant ignoring the maintenance and upkeep problems, that Respondent simply should not be held responsible for these problems. 27. Respondent argued that the keys which Complainant were given lock and unlock the door, and that a heavier set is not any more functional. 28. Respondent argued that the bedroom floor could not be made to squeak at the time of the inspections, and that this item was within acceptable tolerances. 29. Respondent testified that there had been some design changes during construction that had affected the interior ceilings and, therewith, the exterior roof. Respondent testified that they had the plans re- engineered and that there were no mistakes made in the construction of the roof. 30. Respondent agreed to take care of the paint chipping problems. 31. Respondent agreed to take care of the wood flooring problem and the unacceptable repair, and that he would get the subcontractor back out on that repair. 32. Respondent testified that he had been told that the fireplace problem was taken care of with the extension of the flue, and that it had not been possible for them to get into the house to test it (inferring while it was cold enough to have a fire in the fireplace). Respondent opined that the house was tight, inferring that perhaps this was part of the problem. Respondent testified that they would keep trying to find the problem. /// 33. Respondent testified that they had made the original slope away from the house and that they had already brought in extra dirt. Respondent attributed the existing problems to the lack of gutters and an underground drainage pipe in front to remove excess water not only from the roof but from general rain water. Respondent testified that the contract and the specifications never included gutters or a drainage system, that at a certain point (at a meeting with Complainant and Todd Starr) he had discussed the need for gutters with the Complainant and that Complainant had said that he would take care of it. Respondent testified that he had not recalled Complainant stating to him at that time that Complainant had thought gutters were included in the contract. 34. Respondent testified that he had visited the home two days after a snow, and had taken pictures of the pile of snow sitting on the patio [about the middle of the patio] and the towels or cloth against the french doors (with snow not up against the door, but only up against the towels or cloth). Hearing Exhibit 21. Respondent testified that it was his recollection at the December 2000 job site inspection that the snow had been up against the french doors. 35. Respondent testified that the overhangs on the roof jut out twenty-four inches, that the pitch of the roof on the home is 10 to 12, and that the french doors [leading to the patio] face western exposure. 36. Complainant argued that had anyone told him from the beginning that he needed gutters to prevent internal and external damage he would have had it done from the beginning, and that he had received the legal advice to await this ROC outcome before proceeding in that arena. Complainant argued that a contractor is hired to build the home and to guide a person through the necessary items for a home, and that Respondent should be responsible for the resultant damages here. 37. A respondent is required to appropriately and properly repair items as noted on Registrar’s CWO, absent proof that the CWO direction is inaccurate, inappropriate or unnecessary. A respondent is required to correct determined items according to the CWO and as necessary by industry standards. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 3. Violation of any rule adopted by the Registrar; specifically Arizona Administrative Code (A.A.C.) R4-9-108[3]. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure 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. CONCLUSIONS OF LAW 1. In this case, three of the issues raised by Complainant are affected by the weather conditions and results of weather in the home’s location: the drainage problems, the french door damage, and the moisture damage to the wood floor by the french doors. Respondent argues, essentially, that each of these could have been, or would be, resolved by the addition of gutters on the roof, which the contract did not include and which Complainant had said he would take care of. Complainant has the burden of proof regarding the allegations made regarding Respondent’s work or provision of contractual services at this location. Clearly, the written contract between Complainant and Respondent did not call for provision or installation of gutters on the home. Although Complainant argues that Respondent should have included these or should have been responsible to include these, Complainant has not shown that Respondent was responsible for provision or installation of gutters. However, given that the contract calls for water to run away from the home, the effects of general rain, run-off and drainage on the slope are things which the Respondent should have taken into account with respect to the siting and building of the home on this lot location. Therefore, it is determined that Respondent is responsible to correct the drainage problems on site and damage caused by drainage problems. This may entail the importation of additional material, such as was done once before. Respondent’s responsibilities in this area are the slope away from the house, appropriate water flow on the slope and drainage away from the slope and house/house foundation. Credible evidence from both parties established that installation of gutters would alleviate some, but not all, of the excess water situation at this home. Complainant had not selected gutters at the time of the contract, nor has he done so since the contract. Based on all the related testimony in this regard, it is determined that the outcome of any drainage work will be impacted by the overall water conditions at the site. In this case, it would be an exercise in futility to require Respondent to do corrective drainage work absent other work being done prior to Respondent’s drainage work. 2. The written contract had an allowance for doors. Respondent’s testimony inferred that Complainant had selected these french doors. Complainant made no statement regarding who selected the doors. Therefore, Complainant did not show that Respondent selected inappropriate, defective or inferior doors. However, Complainant showed that the doors are either warped or not appropriately affixed to assure non-infiltration of light, air and moisture. Hearing Exhibit B clearly shows daylight at the top of the door. Some of the wood floor buckling problem, as shown in Hearing Exhibit A, must be attributed to moisture penetration. The manufacture and construction of these doors, whether designed to meet extreme conditions or not, should be such that moisture penetration is prevented at the threshold. Complainant has shown the existence of moisture penetration problems. The Registrar’s Inspector testified that he could see the problems with the moisture: the floor buckled. Mr. Blocker’s testimony demonstrated that poor installation and adjustment could have a been the problem causing the moisture penetration, and also that a replacement of the same type would not be a best choice. However, Complainant is entitled to what he purchased, a working and non-defective set of french doors. Respondent is responsible to have installed non- defective doors in an appropriate and workmanlike manner. Whether Complainant chooses to upgrade the doors at this time will be his responsibility over and above those french doors which were originally chosen and installed. 3. Respondent has agreed to correct the roof chipping and peeling paint. 4. Respondent has agreed to correct the wood floors areas of poor workmanship. This would include the badly repaired areas and areas now cracked or buckled. 5. Respondent was under the impression that the fireplace problem was resolved. However, the testimony showed that the fireplace drafting problem continues to exist, and this must be corrected. 6. Although this is a minor item for parties to be arguing about, Complainant is, in fact, entitled to the heavier set of keys that he had special ordered and purchased and then gave to Respondent for the installation of the special order door hardware. Respondent did not dispute receiving the property for installation, and was responsible for its safekeep and installation. 7. There was no showing that the master bedroom floor is inappropriately installed or defective in workmanship. 8. The administrative hearing process cannot mediate the solution and the best order of remedial steps. However, this process will essentially direct that a responsible contractor do the work with cooperation from the homeowner. Complainant’s refusal to allow access is a contractor’s defense against doing or having the ordered work done. 9. Based on the foregoing, as to these above items noted to be required, or agreed, to be replaced or corrected, the evidence and testimony at the hearing established violations, by Respondent, of A.R.S. §§32-1154.A.23 and 32-1154.A.3 namely A.A.C. R4-9-108. 10. In this case, the failure by Respondent to complete directed corrective action within the applicable time frames under the CWO further indicates the commission of a wrongful, but not fraudulent, contracting act to the detriment of Complainant, pursuant to A.R.S. §32-1154.A.7. RECOMMENDED ORDER In view of the foregoing, 1. IT IS RECOMMENDED commencing on the effective date of this ORDER, that the Respondent’s Class B license be temporarily suspended until the Registrar receives proof that an appropriate correction, or settlement, of the remaining determined items, in Conclusions 1 through 6 are completed, contingent on certain conditions precedent. This will entail Respondent correcting and remediating the drainage problems on site only after Complainant proceeds with installation of gutters. This will entail Respondent correcting and remediating the french doors problems by removal and installation of a new door(s) and adjacent wood flooring buckling problems only after Complainant determines whether he will upgrade the french doors. As to other determined needed corrective repairs, Respondent is required to make those corrections as appropriate and according to workmanship standards, without any conditions precedent on Complainant: including correcting the peeling and chipping paint on the roof; correcting the remaining wood floor problem; correcting the fireplace draw problems; and the replacement set of same-as-lost keys. 2. IT IS FURTHER RECOMMENDED that if Respondent appropriately accomplishes the above described and determined repairs, or the parties settle the matter, on or before the effective date of that ORDER, then the above recommended temporary license suspension shall not take place and Citation No. A01-0209 shall be closed. RECOMMENDED this day, September 10, 2001.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by FAX this 10th day of September, 2001 to:

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

By ___________________________ ----------------------- [1] Complainant testified that they had not received possession of the home due to conflicts and legal actions between the parties concerning the home, and that was when he had received this legal advice. Complainant admitted that they had received an estimate from a contractor with regard to installation of gutters, but again had not proceeded because of the legal advice they received. [2] Complainant did not recall the situation or receiving the quote. The gutter bid (Hearing Exhibit 17) contains no date, and Complainant testified that based on the gutter contractor’s recollection of the site condition, it could not have been two years ago that this gutter contractor was present on the site. [3] A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827