ALJDEC

01F-P0220-ROC · Registrar of Contractors · 2002-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2002 APPEARANCES: The Complainant appeared on her own behalf The Respondent appeared on his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed

The facts as presented in the hearing pertain to both complaints which were filed by the Complainant. The issues in the hearing are limited to the matters which are still disputed by the parties. Docket No. 02F- P0096-ROC concerns the complaint of a leaking roof, Docket No. 01F-P0220- ROC concerns a complaint about the wood log style siding on the home. Findings of Fact -Docket No 01F-P0220-ROC 1. The parties entered a contract in August, 1999, whereby the Respondent would build the shell for the Complainant’s home in Lakeside, Arizona. The Complainant was to do the finishing work on the home. The contract price was $81,000.00. The final amount was approximately $85,000.00. 2. The wood siding for the home was delivered in November and December, 1999, and the Respondent finished the home in January, 2000. The siding was installed using two and a half inch “T” nails driven by a pneumatic nail gun. The siding was not sealed (painted or stained). The Complainant had no complaint at the time of completion. 3. By late March and in April of 2000, the Complainant made certain written complaints about the Respondent, to the local Chamber of Commerce and Better Business Bureau. These complaints did not reference the siding, and in general are not relevant to the issues to be determined. 4. In June of 2000, the Complainant’s son, Vincent Mollan (Vincent) began re-nailing various pieces of siding which were warping or otherwise separating from the house or showing gaps. A piece of siding which was brought to the hearing had five, three to three and a half inch long standard nails with heads, at one end of the board. It would appear that the nails were placed in an attempt to keep the end of the board secure. According to Vincent, a number of boards had been fastened by the Respondent with these standard nails. However, most (about 98 % of the nails), consisted of the T nails according to another of the Complainant’s witnesses, Christopher Maksimuk (Maksimuk), doing business as Pinetop Home Inspections. 5. In July, 2000, the Respondent inspected the siding and subsequently informed the Complainant that the problems were due to the fact that the wood had not been sealed. 6. In late September and early October, 2000, the Complainant’s son put screws into some of the siding to secure it. He and an associate sealed the home with three coats of a clear finish. 7. On April 4, 2001, the Complainant filed her complaint with the Registrar of Contractors (ROC), in Docket No. 01F-P0220-ROC. On April 25, 2001, Inspector Tom Sandoval (Sandoval), performed a jobsite inspection. Also present were Maksimuk and a Navaho County Building Inspector. 8. On May 1, 2001, Sandoval issued a Corrective Work Order (CWO) which required the Respondent to correct any gaps over 3/8th of an inch over windows, tighten three boards that were loose at the eaves vent at the north side, and correct a chimney cap. Sandoval did not require corrective work on siding which was pulling away from the wall and the nails popping, because the siding had not been sealed according to the manufacture’s specifications. The manufacturer ‘s literature provides that product which is left exposed for more than 30 days is subject to “…severe shrinking, swelling, splitting, cupping, surface mold and ultraviolet degradation”. The literature (Exhibit A), also states that pieces should not be butted tight on the ends and that hot dipped galvanized, stainless steel or high strength aluminum nails should be used. 9. According to the Respondent, he informed the Complainant prior to construction that the siding needed to be sealed. The Respondent’s wife, Sheila Langnes, testified she told the Complainant that not sealing the wood, would cause problems. According to Mrs. Langnes, the Complainant told a person identified as John Moore that she did not want to seal the siding because she wanted it to look “weathered”. 10. The Complainant testified she was aware that the siding needed to be sealed but did not know when it had to be sealed. In a letter from the Complainant to the Respondent, the Complainant acknowledges she was aware of the fact that the siding had to be sealed to have the bank release funds for the home. The Complainant was also aware that the siding should be sealed for the integrity of the wood but did not recall the specific conversations alluded to by the Respondent and his wife. This issue is significant because the Respondent’s position is that the siding was left in an unsealed condition by the Complainant who knew of the possible consequences, for approximately eight months. This caused the warping from the expansion and shrinking of the wood. The Complainant’s explanation on the issue is not convincing. She testified she knew the siding had to be sealed for the integrity of the wood and because the bank required it before releasing funds. The fact that she would determine when to seal the wood based on when the bank would release the funds makes no sense when determining when the wood should be sealed to maintain its integrity. 11. Ronald Overmeyer (Overmeyer), a general contractor, testified that the siding boards were not properly fastened to studs and improper nails were used. According to Overmeyer, 3 ½ inch galvanized, 16 penny hot tip nails should have been hand driven. Overmeyer also testified the siding butt cuts should have been at a 45 degree angle to avoid the current gapping. The Respondent countered that 45 degree cuts are more labor intensive and therefore cost more. The cost would have to be borne by the consumer. There is no building code requirement for this 45 degree butt joint miter cut. Overmeyer also opined that the “housewrap” should have been placed under the OSB rather on top of it where it shows at spots where the siding is separating horizontally. 12. Christopher Maksimuk, Pinetop Home Inspection Service, is a member of the American Society of Home Inspectors/Inspection Training Associates. Maksimuk had six months supervised home study and one month (according to Maksimuk approximately 298 hours), of classroom study. The profession is not registered with the Arizona Board of Technical Registration. Maksimuk inspected the Complainant’s home and noted the problems already addressed. He testified that head nailing is preferred to pneumatic nailing because pneumatic nails can be overdriven allowing moisture intrusion. This does not appear to have been a problem in this case. He also agreed with Overmeyer that the nails should hit the studs to better secure the siding. This latter point is basically undisputed. Maksimuk testified that the wood siding could have remained unsealed for months if properly nailed (although he acknowledged that this is not recommended). 13. Sandoval testified that he was uncertain as to the exact cause of the problems and he did not determine if it was attributable to installation. Sandoval was of the opinion that the major portion of the siding problems were caused by failing to seal the wood in a timely manner. Apparently, when Sandoval spoke with the Complainant on June 22, 2001, he was informed the work required to be done under the CWO was done but there was a problem with respect to gapping above two additional windows which the Complainant had overlooked. Sandoval made no determination if the joints of the siding were directly over a stud (Minimum Workmanship Standards for Licensed Contractors, Arizona Registrar of Contractors, January 2000, page 39). 14. Alan Knight (Knight) a building inspector for Navajo County inspected the Complainant’s home and testified the work above the garage door was shoddy, the boards were split, some boards were too short and did not line up with studs. Knight also testified a shear panel was not required in the attic (the Complainant had presented this as part of her case). Findings of Fact-Docket No. 02F-P0096-ROC 15. The Complainant’s roof developed some leaks in the summer of 2001. The parties were not communicating amicably or effectively (there apparently was an injunction against the Complainant harassing the Respondent). According to the Respondent, the Complainant was not going to “dictate” to him. The Complainant hired another contractor to repair the roof. 16. On October 12, 2001, the Complainant filed her second complaint with ROC, Docket No. 02F-P0096-ROC, because of roof leaks where the house and porch roofs meet. 17. The issue regarding the leaking roof came before the Pinetop-Lakeside Justice Court (Small Claims), CV2001-0277. The Complainant had paid $1,435.00 for repair of the roof leak, and sought to recover this amount. The court, after a hearing, entered an Order in late January 2002, which provided that the roof was leaking and defective, and that it was not the fault of the Complainant. However, the court also found that the Respondent had been hindered from going on the property or doing corrective work, by the Complainant. The Court ruled for the Respondent. 18. According to the Complainant, the roof is still leaking and had to be fixed again in March, 2002. Conclusions of Law-01F-P0220-ROC The Citation and Complaint in Docket No. 01F-P0220-ROC, alleges violation of A.R.S. §32-1154(A)(2), departure from plans and specifications, (A)(3)/A.A.C. R4-9-108 workmanship, and (A)(7), a wrongful act with substantial injury. 1. The Complainant has the burden of proving the violations by a preponderance of the evidence, Culpepper v. State, 187 Ariz. 431 (1996 App.) A.A.C. R2-19-119. 2. The evidence clearly shows that many of the sidings boards are warping, gapping and pulling away from the OSB backing. The question is how much of this problem is attributable to the Respondent and how much was caused by the Complainant’s failure to seal the wood. 3. It is concluded that the Complainant has proven by a preponderance of the evidence that some of siding was not applied in a workmanlike manner. The testimony of Overmeyer, Maksimuk and Knight is considered sufficiently reliable to support this conclusion. However, the Respondent has shown that much of the warping, gapping and other problems are due to the failure to seal the wood for over eight months. Documentary evidence from the manufacturer, the testimony of Sandoval and even the Complainant’s witnesses support this conclusion. It is concluded that both parties contributed to the problem. The Administrative Law Judge (ALJ) has no way of determining who is responsible for what portion or amount of the problem (apportioning damages). Based on the evidence presented in this case, any attempt to apportion damages would be speculative. In addition, it is quite evident that the parties are incapable of working together in a reasonable manner for a common goal. The violation of A.R.S §32-1154(A)(3)/A.A.C.R4-9-108 is established. No violation of (A)(2) was proven. Conclusions of Law-02F-P0096-ROC The Citation and Complaint in Docket No. 02F-P0096-ROC, alleges violation of A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 workmanship, and (A)(7), a wrongful act with substantial injury. 1. Docket No 02F-P0096-ROC is partially disposed of by the principle of res judicata. In simple terms, the principle means that once a disputed matter between the same parties has been determined in a competent forum, and the issue becomes final (no appeal can be taken), then the matter cannot be re-litigated in another forum. The reason for this is simple. The law favors finality, consistency and certainty to the indefiniteness, inconsistency and uncertainty which would ensue if parties could litigate multiple times in multiple forums and obtain differing results on the same issue. The unacceptable confusion this would cause is self evident. Therefore, the small claims action on the roof issue is considered final. 2. The court found the roof defective and the defect was not caused by the Complainant. The Respondent countered that he was not given an opportunity to fix the roof and since he was denied the opportunity, he should not be found in violation of workmanship standards. 3. The court concluded that the Complainant had denied the Respondent reasonable access required to repair the roof. The Complainant’s case for money damages was dismissed. Essentially, the court ruled that the Complainant has no right to a monetary recovery for the work done by another contractor on the particular portion of the roof. This would include the right to any further corrective work on that portion of the roof. The fact that another contractor worked on the roof after the Respondent, creates an intervening cause which also militates against the Complainant having any further claim for correction or restitution against the Respondent on this specific issue. 4. Nevertheless, considering all of the evidence, it is concluded that the leaking roof in the summer of 2001constitutes poor workmanship in violation of A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108. There is nothing in the law which provides that a contractor has an inherent right to construct something in a manner which tolerates initial failure. Construction may not be a perfect science but it should not be a sloppy science. If a roof fails to perform its function and keep out rain under normal conditions, there is a workmanship problem. Simply because a contractor is given the opportunity to correct the work in order to avoid the case proceeding to a disciplinary hearing, does not mean that poor workmanship in the first instance is necessarily excused. Recommended Order It is recommended commencing the effective date of the Order entered in this matter that the Class B license of the Respondent shall be placed on probation for a period of 120 days.

Done this day, April 29, 2002

______________________________________ Allen Reed Administrative Law Judge

Copy mailed this ____ day of ______________, 2002 to:

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

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