ALJDEC

01F-M1180-ROC · Registrar of Contractors · 2002-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2002 APPEARANCES: Larry Moritz, Complainant; Wayne Davis, Respondent ADMINISTRATIVE LAW JUDGE: Wendy S. Morton _____________________________________________________________________ The issue presented by this matter is whether Respondent Fulton Homes 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 Fulton Homes Corporation is the holder of a Class B license (No. 042430) issued by the Registrar of Contractors (“ROC”). Wayne Davis is Respondent’s qualifying party. Complainant Larry Moritz and his wife Nancy Moritz own and occupy a home on 1201 E. Pony Court, Gilbert, Arizona (“Home”). The Home is in Respondent’s Ashland Ranch development. Respondent originally built the Home as a spec home. Complainant moved into the Home on February 3, 2001.

On March 22, 2001, Complainant filed a complaint against Respondent with the ROC. Inspector Ted Gerold was assigned to investigate the case on behalf of the ROC. Inspector Gerold has twenty one years experience with home builders throughout the Valley, including Customer Service as both a Superintendent and Project Manager for builders in Phoenix, Gilbert, Mesa and Scottsdale. He has been an ROC inspector for over a year. On April 10, 2001, Inspector Gerold conducted a jobsite inspection at the Home. Complainant, Inspector Gerold, Wayne Davis and Pat King for Respondent and electrical subcontractor Alan Doro were present during the inspection. On April 17, 2001, Inspector Gerold issued a Corrective Work Order (“CWO”) under which the ROC gave Fulton 15 days to correct the following deficiencies: a) Item 3: The flickering of the laundry room light when turning on the master bathroom lights. b) Item 4: The excessive burning out of the master bath lights. c) Item 11: The crimped and excessively soldered copper pipe at the outside of the AC condensing unit. Complainant also had alleged that an excessive amount of time was required for hot water to reach the kitchen sink. As to this item, however, Inspector Gerold found that no action was required for the time it takes for the kitchen sink to have hot water. On May 16, 2001, Inspector Gerold spoke with Complainant and was told that the repairs were “coming along.” Respondent had offered to replace the laundry room lights with lower wattage bulbs, however, Complainant was dissatisfied with Respondent’s proposed resolution. Complainant also expressed continuing dissatisfaction with Inspector Gerold’s determination regarding the hot water in the kitchen issue. On June 6, 2001, Inspector Gerold closed the complaint because he had had no contact with Complainant since May 22, 2001. On November 14, 2001, Complainant filed a request to re-open the complaint. On November 30, 2001, the ROC issued a Citation and Complaint against Respondent, charging Respondent with violations of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans and specifications), (A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). Inspector Gerold conducted a prehearing inspection completed on March 13, 2002. Complainant and Respondent agreed at hearing that the issues identified in Findings of Fact Nos. 7 and 8 are still unresolved to Complainant’s satisfaction. Issue 1: Flickering of the Lights (CWO Item 3 and 4) p) The laundry room lights flicker when the lights in the master bathroom are turned on. q) Complainant states that the master bathroom light bulbs burn out excessively. However, this contention is not supported by any persuasive evidence. r) Complainant’s expert, Alan Doro, president of Doro Electric, a subcontractor with Respondent testified that the flickering is not due to a workmanship issue but rather a load on the electrical circuit that is created when the master bathroom lights are turned on. This load is more apparent in items such as incandescent lights. Mr. Doro’s professional opinion is that the flickering of the laundry room lights is caused by the load from the master bathroom lights. s) Upon consideration of the evidence, the Administrative Law Judge finds Complainant failed to present any probative or substantial evidence to establish that the installation of the lights in the laundry room failed to meet the ROC’s minimum workmanship standards.

16. Issue 2: Amount of Time it Takes for Water in Kitchen Island to Get Hot a) Complainant’s wife, Nancy Moritz, testified that on average it took between 3 to 3.5 minutes for the water to get “hot enough to wash the dishes.” This has been a problem since the Moritz’ first moved into the Home in February, 2001. b) Mrs. Moritz testified that the hot water delay is causing the dishwasher not to work efficiently, however, there was no credible evidence presented that the dishwasher is not functioning properly. c) Inspector Gerold testified that when he did the job-site inspection on April 10, 2001, the water did not become hot “immediately”. Inspector Gerold defined “immediately” as within 30 seconds. He noted that it took 7-10 minutes for the water to get hot. Inspector Gerold testified that this time period met the minimum standards of workmanship within the industry. d) There is no code requirement regarding which fixture should get the hot water first. Inspector Gerold explained that plumbing contractors lay pipe in a loop and that it is not uncommon for a kitchen sink to be last in the loop, even though it may actually be the closest plumbing fixture to the hot water tank (as in this case). In Inspector Gerold’s experience, it is common for either a kitchen island or a master bathroom to get the hot water last, especially when they are at opposite ends of the house. e) Inspector Gerold testified that no building codes were violated in the plumbing installation and that the plumbing in the Home met the minimum standards of workmanship. f) Complainant’s expert, Phil Garduno, is a supervisor for Whitton Plumbing, subcontractor for Respondent. Whitton Plumbing was involved in the installation of the plumbing in the Home. Mr. Garduno corroborated Inspector Gerold’s testimony. g) Complainant argued that he relied on the model home as a replica of how the Home would be, including the hot water in the kitchen island. However, Kevin Haller, the Whitton Plumbing production manager and the foreman who oversaw the plumbing installation in Respondent’s model home and in Complainant’s Home, testified that there was no hot water heater in the model home. h) Based on the foregoing, the Administrative Law Judge finds that the hot water delay in the Home does not violate the ROC’s minimum workmanship standards. 9. Issue 3: Air Conditioner (CWO Item 11) j) During the job-site inspection on April 10, 2001, Inspector Gerold observed crimped and excessively soldered copper pipe at the outside of the air conditioner condensing unit (“Unit”). k) Mrs. Moritz testified that in early summer, 2001, a technician from Sonoran Air, a subcontractor of Fulton, attempted to correct the situation and started a fire at the Unit. Mrs. Moritz testified that after that incident, the air conditioner no longer functioned properly. l) Pat Irby, a technical service specialist for Sonoran Air, serviced the Unit on April 16, 2001 and on May 4, 2001. On April 16, 2001, Mr. Irby found that the Unit had been split from the rest of the air conditioning system. He removed the Unit, replaced it and installed copper pipe and insulation. m) Mr. Irby returned on May 4, 2001 to check the system. He testified that there were no blockages or restrictions from the soldering work in any of the lines. He believed that the repairs were sufficient. n) Despite the efforts to correct the problem with the Unit, the situation was still unsatisfactory. When Inspector Gerold returned for the pre-hearing inspection on March 13, 2002, he found that although it appeared that some corrective work had been performed, that workmanship did not meet minimum workmanship standards. He observed that there were an “excessive amount of fittings being used to connect an excessive amount of copper lines.” o) Inspector Gerold testified that the industry standard is to connect the Unit with the Home with only one fitting, using soft, flexible copper. In this case, Gerold saw two or three fittings. Instead of using only flexible copper pipe, both rigid and flexible copper were used. Gerold stated that the work was “sloppy” and did not meet minimum standards of workmanship. p) In Inspector Gerold’s expert opinion, the integrity of the line was compromised. Inspector Gerold indicated that this could have compromised the efficiency of the Unit. q) Inspector Gerold’s testimony was corroborated by Complainant’s testimony. The Administrative Law Judge found Complainant’s testimony to be credible based on the fact that Complainant has knowledge and expertise in the field of heating and refrigeration. r) Even Mr. Irby agreed that a crimped or excessively soldered pipe on the Unit could possibly cause damage to the system. Mr. Irby believed that it is possible but highly unlikely that the air conditioning system was contaminated and suffered some damage s) The Administrative Law Judge finds, on the weight of the credible evidence presented, the workmanship on the Unit still does not meet minimum workmanship standards and should be corrected by appropriate means. CONCLUSIONS OF LAW 1. In this administrative proceeding Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its November 30, 2001 Citation and Complaint. 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). 2. The Administrative Law Judge concludes that Complainant sustained his burden to prove that Respondent failed to comply with ROC’s minimum workmanship standards for the installation of and subsequent corrective work performed on Complainant’s air conditioning condenser unit. The Administrative Law Judge concludes that in so doing, Respondent violated A.R.S. § 32-1154(A)(3) as charged by the ROC in its Citation and Complaint.

3. The Administrative Law Judge further finds that Respondent violated A.R.S. § 32-1154(A)(7) and (A)(23) as charged by the ROC by failing to perform appropriate corrective work and by engaging in a wrongful act which substantially injured Complainant. 4. With respect to the remaining issues, the Administrative Law Judge concludes that Complainant failed to establish that Respondent failed to meet the ROC’s minimum standards. Therefore, as to these issues, the Administrative Law Judge concludes that Complainant failed to demonstrate that Respondent violated any provisions of A.R.S. § 32-1154 (A)(7). RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that Class B license No. 042430 shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the copper piping at the outside of Complainant’s air conditioner condensing unit. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint shall be closed. With respect to the remaining items (Items 3, 4 and the Hot Water issue), it is recommended that the Registrar of Contractors take no action against Respondent’s Class B license and that no further corrective work be ordered.

Done this day, April 8, 2002

______________________________________ Wendy S. Morton Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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