ALJDEC

02F-G0209-ROC · Registrar of Contractors · 2002-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2002 APPEARANCES: The Complainant, Kala Cadell, represented herself Roger Decker, Esq. appeared on behalf of the Respondents ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. In 1998, the Complainants and Co-Respondent, Capital Pacific Homes of Arizona, Inc. (Capital), entered a contract for the construction of the Complainants’ home in North Scottsdale, Arizona. The contract price, including the lot, was approximately $321,000.00. 2. The Complainants entered the contract with Capital after viewing a model home which had an “aggregate” concrete driveway. The Complainants’ contract called for such a driveway and it was installed by a subcontractor, the Co-Respondent, Trojan Concrete, Inc. (Trojan). 3. A supplement to the contract required Capital to “Preserve all vegetation, check w/ buyer before laying pad.” 4. During the construction of the home, The City of Scottsdale required Capital to re-grade an area on the eastside of the house. An unidentified tree/bush (Exhibit G shows it to have been at least six feet high), was removed and not replaced. According to the Complainant, Karla Cadell (Cadell), Capital’s job site supervisor, Guy Christian (Christian), gave verbal assurances that the plant would be replaced as part of the “punch list”. 5. The Complainants moved into the home in late August or on September 1, 1999. They had some concerns with the aggregate driveway in that they believed it as excessively rough and uneven (excessive bald spots). 6. In July, 2000, there was a leak in the hot water hose under the Complainants’ kitchen sink. The plumbing subcontractor, Dirt Dog, replaced the hose. There was also a leaky faucet in the sink. In any event, there was water damage to the kitchen sink cabinet resulting in mildew, pressed board swelling and delamination. 7. In August 2000, the Complainants submitted a list of items to Capital as part of a one year warranty review. According to Cadell, the list contained numerous items. Included in the list were the missing vegetation, the driveway, and damage to the kitchen cabinet. 8. Capital failed to correct all the items to the satisfaction of the Complainants who filed their complaint with the Registrar of Contractors (ROC) on August 27, 2001. 9. ROC inspector Lee Deem (Deem) performed a jobsite inspection on September 20, 2001. At that time, Deem determined that approximately 12 items did not require action and a number of other items required correction. Capital agreed to correct additional items listed in the complaint. These items were not specifically identified by the Corrective Work Order (CWO), issued by Deem on September 25, 2001. The items at issue in this hearing are the driveway, the missing tree/bush and the damaged kitchen sink cabinet. These items were determined to require no action by Deem (the Complainants disagreed with Deem’s conclusions). Also, at issue are the leaking windows which Capital had agreed to correct at the jobsite meeting but which have not been completed because more windows were found to be leaking than initially had been thought. The Respondent testified during the hearing that it will correct any window which was leaking. 10. As a consequence of the inspection, Deem had concluded that the leak from the sink was from the reverse osmosis (RO) system which had been installed by the Complainants, that the aggregate driveway was acceptable, and that there was insufficient evidence to conclude the Complainants were entitled to a tree/bush. Conclusions of Law The allegations in the Citation and Complaint which issued against both Respondents concern A.R.S. §32-1154(A)(3)/A.A.C.R 4-9-108 workmanship, (A)(7), a wrongful or fraudulent act , and (A)(23), failure to take corrective action. 1. The (A)(23) allegation against the Co-Respondent Trojan must be summarily dismissed since no CWO was issued to Trojan. In addition, no (A)(23) violation can be sustained against Co-Respondent Capital on the driveway, tree or sink because no CWO issued on those items. This leaves only the leaking windows which Capital agreed to correct at the time of the jobsite inspection. The fact that the windows are acknowledged to be leaking and to require correction, establishes a violation of (A)(3)/A.A.C. R4-9-108. The Respondent testified that the all the windows were water tested, and a number of windows which were not identified in the complaint were also leaking. To the extent that the Respondent accepted the need to correct and agreed to correct, the windows in question, the requirement to correct is considered to be part of the CWO. The CWO issued on September 25, 2001. No sound reason was given to satisfactorily explain why appropriate corrective work has not been completed on the windows in a more timely fashion. An attempt to caulk the windows was apparently ineffectual and therefore it does not satisfy the requirement for appropriate remedial work. 2. The Complainant has the burden of proof by a preponderance of the evidence, Culpepper v. State, 187 Ariz. 431 (App. 1996). The aggregate driveway issue is problematical. The photographic evidence submitted by Cadell shows some minor color variations within the driveway (significant color variations of the Complainants’ driveway and the model home driveway appear to be due in part to photographic differences shown in the computer printouts which were submitted as exhibits). However, Cadell contends the problem is not the color variation as much as a combination of factors including uneven texture of the driveway due to “bald spots” where there is little or no aggregate and the fact that the aggregate in other places is not smooth. In the narrative filed with the complaint, the driveway is described as “Extremely rough and jagged…so sharp it will pop soda cans if you set them down.” According to the testimony of Cadell, the driveway is not of the same high quality as the driveway at the model home. Deem testified the driveway looked like a ” typical exposed aggregate” and that it was in good shape for being two years old. Deem also testified that he looked at the driveway at the model home and it was essentially the same as the Complainants’ driveway. Rick Servant (Servant), testified for the Co-Respondent (Trojan), that the Complainants’ driveway is not unique and it looked “good” when he saw it in December, 2001. The evidence did not identify any particular standard which governs aggregate concrete/driveways. According to Servant, there are industry standards but no ROC standards. There are some differences such as color, texture and possibly the rock used, between the model home driveway and Complainants’ driveway. However, based on the entirety of the evidence, the difference is insufficient to conclude that the Complainants’ driveway does not meet minimum workmanship standards (such standards not being readily apparent or not having been set forth in the hearing), or that the Complainants’ driveway is of such lesser quality than the model home driveway so as to constitute a failure to meet a standard based on a sample or representation. There is no violation of (A)/(3)/A.A.C. R4-9-108 on this issue. 3. The damage to the sink cabinet is attributed to either the leaking faucet and/or the faulty hot water hose. In either case it is the responsibility of Capital. Deem acknowledged that he might have been mistaken when he attributed the problem to the reverse osmosis (RO) system. Cadell’s testimony that the RO system is not leaking and has not required any work is sufficient on the issue. The evidence that the plumbing subcontractor replaced the split hot water hose is considered more credible than the Declaration of Bret Branch (Exhibit 13). Capital is required to correct (either replace or repair) the portions of the cabinet with the mildew, delamination, and swelling of pressed board problems. 4. The final issue concerns the missing tree/bush. The evidence is that the Respondent was to preserve vegetation and check with the Complainants before laying the pad. The missing tree is not on the pad and it was not one which was designated to be preserved by Scottsdale. Nevertheless, considering its size and location, the provision to save vegetation would appear applicable. The fact that the side of the Complainants’ lot had to be re-graded did not establish that the tree had to be removed or if it had to be removed that it could not be salvaged. On the other hand, the Complainants did not establish the type of vegetation or its value. The Respondent can replace the vegetation with a similar bush/ tree or at its option give restitution to the Complainants in the amount of $75.00. Recommended Order In view of the foregoing it is recommended that the Citation and Complaint against Respondent Trojan Concrete Inc. in Docket No. 02F-G0210- ROC be Dismissed. It is further recommended commencing the effective date of the Order entered in this matter that the Class B license of Respondent Capital Pacific Homes of Arizona, Inc. shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on leaking windows, the problems identified in the kitchen sink cabinet, and has replaced the vegetation or at the Respondent’s option, made restitution to the Complainants for the vegetation in the amount of $75.00. It is further recommended that if the Respondent Capital Pacific Homes of Arizona, Inc. complies with the Order entered in this matter on or before the effective date of said Order, then the aforementioned suspension shall not take place and the Citation and Complaint upon which it was based, shall be closed. It is further recommended that the Complainants make the premises reasonably available to the Respondent to allow for timely compliance with any Order entered in this matter.

Done this day, January 30, 2002

______________________________________ Allen Reed 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 ___________________________

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