ALJDEC

01F-G0244-ROC · Registrar of Contractors · 2001-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2001. APPEARANCES: Todd McDermott appeared on behalf of the Complainant. Dennis Wilenchik, Esq., represented Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ Respondent Monterey Homes (hereinafter Respondent) is alleged to have violated A.R.S. §32-1154(A)(2)(Departure form or disregard of plans or specifications or building codes in a material respect which is prejudicial to another without consent of the owner) and A.R.S. §32-1154(A)(7)( committing a wrongful or fraudulent act which results in substantial injury to another). The evidence adduced in this case fails to demonstrate that Respondent violated either of these statutes. For the reasons that follow, it is recommended that Director dismiss the instant complaint. FINDINGS OF FACT 1. Complainant entered into a purchase contract to have a semi- custom home built by Respondent in one of Respondent’s subdivisions. 2. The home which Complainant had contracted to have built was the “Bellagio” model. Complainant had viewed a “Bellagio” model prior to making his purchase. The model home, among other things, was built so that the electrical circuit breaker box was on one end of the home. 3. Complainant’s home, as built, had the electrical circuit breaker box placed on a side of the home that was different from the location Complainant had seen on the model home. Complainant discovered that the electrical box had been placed on a different end of the home he was having built immediately after the framing and rough -in wiring of the home had been completed. Complainant immediately contacted Respondent’s job foreman, John Falcione, and indicated that he did not want to have the electrical box located where it had been placed. Instead, he wanted it on the opposite end of the home in a manner similar to the manner in which the box was located on the model home. There was absolutely no evidence to suggest that Complainant ever informed Respondent prior to the installation of the home’s wiring and the electrical circuit panel that he wanted the panel located in any specific location on the home. 4. Soon after Complainant informed Mr. Falcione of his concerns, Respondent’s building supervisor, Michael Topmiller, came to the job site to meet with Complainant . Falcione to discuss the situation and ways to accommodate Complainant’s request. At that time, Complainant indicated to Mr. Topmiller that he was concerned that the present location of the electrical box would necessitate a “long run” for the electrical wiring for the Jacuzzi that Complainant intended to install. To alleviate this problem, Mr. Topmiller proposed to run a dedicated electrical circuit from the extent electrical box to the side of the home that would be closest to Complainant’s proposed site for the Jacuzzi. Complainant apparently rejected this suggestion. In addition, to alleviate other concerns regarding the proximity of the electrical box and natural gas meter to other proposed projects in Complainant’s backyard, conduits were placed under Complainant’s driveway to ensure any additional lines could be easily routed to the backyard. 5. Respondent’s reason for the placement of the electrical box on Complainant’s home was quite reasonable. Arizona Public Service -- which owns the electrical transformer that supplies electricity for the home, the lines that feed electricity to the Complainant’s home, and the electrical circuit panel which is the subject of this dispute-- requires that the box be placed on the side of the home which is closest to the transformer. APS requires this for two reasons (1) it costs them less money to run the line to the home and (2) placing the electrical box as close as possible to the transformer reduces the “current drop” (a loss of electrical current that occurs as current is run along a distance of wire). 6. APS does permit variances to this requirement provided that there is no loss of current because of the distance and provided that the requesting party is willing to pay for any additional expenses incurred in relocating the electrical circuit box. In this case, the evidence does show that there would have been little current loss if the circuit panel had been placed on the far end of the home . It is also clear, however, as Complainant candidly admitted, that he was not willing to pay for switching the circuit panel because he felt that it was Respondent’s responsibility to pay for the change. 7. Respondent’s electrical wiring plan for the “Bellagio” model was produced by RB Electric. Complainant relies on this wiring plan to support his contention that Respondent deviated from the plan. The wiring plan does show the electrical circuit panel in the position that Complainant contends it should be on his house. The plan also clearly indicates, however, that “ELECTRICAL PLAN IS SCHEMATIC AND CONTAINS SUGGESTED LOCATION OF FIXTURES, SWITCHES, OUTLETS AND OTHER RELATED EQUIPMENT (emphasis added).” There is nothing to suggest that the plans require that the circuit box always be placed on one side of the home. Indeed, there was no reason advanced as to why the failure to place the circuit panel on one side of the home or the other would be a material variance from the plan, i.e., that placement of the electrical box would be a safety hazard or constitute a deviation from something that Respondent would reasonably have foreseen as a material part of the purchase contract. 8. Complainant was not satisfied with the proposed solution to the issue and was unwilling to pay for the additional cost of moving the circuit panel. Respondent was unwilling to move the circuit panel unless Complainant paid the cost for doing so. Complainant then filed a complaint with the Registrar of Contractors(hereinafter ROC). ROC Inspector Lee Deem was assigned to review the situation. After investigating the matter, Mr. Deem concluded there was no violation of any applicable statute on the part of the Respondent. The undersigned, after making an independent review of the applicable facts and law, agrees with Mr. Deems conclusion. There simply is no evidence in this case to show that Respondent failed to follow any plan or applicable state or local building code in the placement of the electrical circuit panel. 9. At the hearing, Complainant also raised an issue regarding the aesthetics of the placement of the panel. The complaint, however, is limited to alleged violations of A.R.S. §32-1154(A)(2) and (A)(7). There is no allegation of workmanship in the complaint. Adjudicating any issue of workmanship in this case without proper notice would violate due process. Accordingly, the undersigned refuses to reach any issue regarding aesthetics in this case. Should Complainant feel that aesthetics is an issue, he is free to bring a separate complaint regarding workmanship. The undersigned would strongly urge the Complainant to first discuss with Respondent different solutions to resolving any issues of aesthetics that Complainant perceives to exist. Both parties appear to be reasonable and Respondent has indicated a willingness to work with Complainant to resolve any aesthetics issues. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (2). Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner . . . * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * *

2. 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). 3. The evidence fails to establish that Respondent violated A.R.S. §32-1154(A)(2) by departing from any building plan or code. To the contrary, Respondent followed all applicable plans and building code requirements, as demonstrated by the findings of fact above. 4. As also demonstrated by the findings of fact above, the evidence fails to establish that Respondent engaged in a wrongful or fraudulent act. Nothing in the purchase agreement indicates that the electrical circuit panel must be placed on a particular side of the home. Likewise, the purchase agreement cannot be construed to make placement of the electrical panel a material term of the purchase contract. Complainant failed to communicate his desire to Respondent to have the circuit panel placed in a particular spot on the home before the panel was installed and the wiring completed. When Complainant did request to have the panel changed, Respondent’s requirement that Complainant pay for the changes was not wrongful. . . .

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Director of the Registrar of Contractors dismiss the instant citation and complaint. Done this day, January 19, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

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

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

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826