ALJDEC

01F-M0228-ROC · Registrar of Contractors · 2001-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On March 9, 2001, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). David Timochko (the “Complainant”) appeared on his own behalf. Garret Randolph Moss (the “Respondent”) appeared on his own behalf. Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. In January of 1998, the Complainant and the Respondent entered into a written contract (the “Contract”) requiring the Respondent to build a house (the “Home”) for the Complainant at 13212 E. Country Shadows Circle, Chandler, Arizona. The Complainant moved into the Home in October of 1998.

2. On August 11, 2000, the Complainant filed a Complaint with the Registrar of Contractors (“ROC”). On or about August 24, 2000, ROC Inspector Dennis Cook scheduled a jobsite inspection for October 4, 2000 at the Home. Inspector Cook and the Complainant were present for this inspection. The Respondent failed to appear.

3. On or about October 12, 2000, Inspector Cook issued a Corrective Work Order ("CWO") to the Respondent ordering that 18 items be corrected at the Home. See CWO, dated October 12, 2000.

4. At the hearing in this matter, the Complainant testified that the following CWO items still require corrective action: . . . 2. Contractor to insure that sliding door to rear patio and three windows directly above are properly installed and watertight. All leaks in the area to be properly corrected. 3. Contractor to determine cause of flickering and intermittent malfunction of can lighting around perimeter of great room, and correct by appropriate means. . . . 10. Contractor to replace missing cap tile at turret roof and insure that all roof tiles are nailed according to manufacturer’s recommendations. 11. Seals at exterior door to master bedroom are to be properly adjusted. . . . 13. Contractor to correct problems with three kitchen appliances. Doors of microwave and conventional ovens squeak excessively when opened and closed. Stovetop vent makes excessive noise when raised or lowered. Right front burner of cooktop does not function. . . . 15. Contractor to insure that ceiling insulation is properly installed with R values as shown in approved plans and specification. 16. Contractor to properly correct brick sidewalk and utility trenches which have settled in the front yard.

5. The Respondent agreed that the windows above the rear patio have leaked. The Respondent testified that these windows have been modified from 6 inch pop outs to 2 inch pop outs. The Respondent testified that this modification should correct this CWO item. The Respondent testified that a subcontractor was completing this corrective work at the time of this hearing.

6. The Respondent testified that the flickering lights are thermal lights. The Respondent testified that thermal lights are designed to shut off when they become hot. The Respondent testified that he will remove the insulation above the thermal lights to vent heat from the lights. The Respondent testified that he will also place cones above the thermal lights to prevent the insulation from falling on the lights.

7. The Respondent testified that there is one missing cap tile at the turret roof. The Respondent testified that he will fix this problem.

8. The Respondent testified that he has made several attempts to seal the exterior door to the Home’s master bedroom. The Respondent testified that there is still some leakage at the threshold of this door. The Respondent testified that he will change the threshold of the door to correct this problem.

9. The Complainant testified that there are problems with three kitchen appliances. The Complainant testified that the right front burner stopped functioning about a year after he had moved into the Home. The Complainant testified that the microwave door squeaks excessively. The Complainant testified that the motorized stovetop vent makes excessive noise when raised or lowered. The Complainant testified that the microwave door and the stovetop vent have squeaked since he moved into the Home.

10. Inspector Cook testified that the motorized stovetop door appears to function properly. However, Inspector Cook testified that the stovetop door makes a squeaking sound when it is lowered or raised. Inspector Cook testified that it sounds like metal rubbing against metal.

11. The Respondent testified that the stovetop vent has been functioning properly for two years. The Respondent testified that the stovetop vent was inspected and approved by its manufacturer. The Respondent testified that the manufacturer warranties were provided to the Complainant for the kitchen appliances.

12. The Respondent testified that the Complainant failed to notify him that there was a problem with the right front burner. The Respondent testified that the burner is no longer under warranty. The Complainant conceded that he cannot remember when he notified the Respondent that the burner was broken.

13. The Complainant testified that he hired CornerStone Inspections to inspect the insulation in the Home’s ceiling. The Complainant testified that the Respondent was supposed to install R-38 rated insulation in the Home. However, the Complainant testified that the CornerStone Inspector found that the Respondent had only installed R-23.8 to R-28.8 rated insulation at the Home.

14. The Respondent testified that the insulation in the Home’s ceiling was installed with R values as shown in the approved plans and specifications. The Respondent testified that the insulation in the Home’s garage ceiling is supposed to be less than R-38 rated insulation. The Respondent testified that the CornerStone Inspector may have measured the insulation in the Home’s garage ceiling. The Respondent conceded that his subcontractor failed to insulate one area above the master bedroom. The Respondent testified that this area has been corrected.

15. The Respondent testified that he did not install the brick sidewalk and utility trenches in the Home’s front yard. The Complainant agreed to correct this CWO item.

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. The Respondent failed to perform in a professional and workmanlike manner regarding the aforementioned items in the CWO.

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). The Respondent’s failure to correct several items in the CWO has caused frustration and stress to the Complainant. The Complainant has waited over two years for the Respondent to complete the Home.

4. 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). The Respondent still has not corrected some of the CWO items.

5. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class B- 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(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 that the Respondent’s Class B- license be suspended until the Registrar receives proof that the Respondent has caused a properly licensed contractor to perform the following work at the Home: 1. Contractor to insure that sliding door to rear patio and three windows directly above are properly installed and watertight. All leaks in the area to be properly corrected; 2. Contractor to determine cause of flickering and intermittent malfunction of can lighting around perimeter of great room, and correct by appropriate means; 3. Contractor to replace missing cap tile at turret roof and insure that all roof tiles are nailed according to manufacturer’s recommendations; 4. Contractor to properly seal the exterior door to the master bedroom; 5. Contractor to correct microwave door; and 6. Contractor to insure that ceiling insulation is properly installed with R values as shown in approved plans and specification.

It is further recommended that if the 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 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 the Respondent, as defined in A.R.S. §32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. Done this day, March 21, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2001, to:

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

By ___________________________ -----------------------

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