ALJDEC decisions subject to certification as final

06F-1972-ROC · Registrar of Contractors · 2007-07-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2007 and June 27, 2007.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondents were represented by their attorney, Dennis I. Wilenchik, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. It was not disputed that Respondent, Meritage Homes Construction, Inc. was the successor-in-interest to Monterey Homes Construction, Inc., the entity with which the above-named Complainant had most all of his purchase and construction dealings. In point of fact, the two corporate entities had concluded a merger in July 2005 whereby Monterey was merged into Meritage, as the surviving corporate entity and licensee. The contracting license of Monterey was subsequently cancelled on June 15, 2006. For the purposes of this decision, the singular word, “Respondent” is intended to refer to either or both of the named Respondents in this administrative action.

2. Pursuant to a written contract that incorporated plans and specifications, Respondent agreed to and did construct and sell a residential dwelling to Complainant. The full contractual price, including the costs of various selected additional or extra-cost items or features, was fully paid by Complainant to Respondent. Complainant took occupancy of the premises in December, 2005.

3. On March 20, 2006, Complainant filed the within formal complaint with the Registrar of Contractors, originally identifying over 85 separate items or areas of alleged deficiencies. At the outset of the initial scheduled hearing session, Complainant stated that only the three complaint items that are discussed below remained in issue between the parties, thereby warranting a finding that all other enumerated complaint items were either rectified, withdrawn or were not otherwise being pursued by Complainant in this administrative action. The remaining items or areas that became the subjects of evidentiary presentations by the respective parties related to the tile roof tile installation, the color of the laundry room countertop and the kitchen microwave oven.

4. Following the first of several jobsite visits by the Registrar’s assigned Inspector, a written Corrective Work Order, dated May 5, 2006, was issued to

Respondent that specified the need for appropriate remedial work on 25 identified complaint items. Such written directive also stated that 45 of the other complaint items had already been corrected prior to the Inspector’s visit and that the remaining 18 items were found not to constitute contracting law violations on the part of Respondent.

5. A subsequent jobsite visit by the Inspector resulted in the issuance of another written Corrective Work Order, dated September 14, 2006 which specified the need for appropriate remedial action on one of seven additional complaint items, the rest of which either were noted as having been corrected prior to such further inspection or were determined not to be the responsibility of Respondent.

6. Of perhaps some significance, none of the three complaint items presently remaining in issue between the parties; namely, the tile roof, the kitchen microwave or the laundry countertop installations, were the subjects of any of the identified items requiring appropriate corrective work in either of the Inspector’s written directives.

7. With respect to the tile roof issue, it did appear that several months after Complainant had taken possession of and occupied the home in December, 2005, and after Complainant had obtained and paid for an inspection report from a purported expert, numerous roof tile pieces were reported to be broken, cracked or otherwise deficient. Despite the absence of any specific mention of any roof tile problems either in the pre- possession walk-through by the property owner or in a 30-day post- possession walk-through, Respondent agreed to and did replace approximately 100 roof tiles, believing this work was being performed as a courtesy to Complainant since the cause of breakage was never demonstrated. However, in reality, such roof tile replacement may very likely have constituted part of Respondent’s applicable construction obligations to some extent irrespective of whether or not these problems were observed or noted during the various walk-through inspections at or near the start of Complainant’s occupancy.

8. Following what was reportedly a microburst featuring winds of unduly high velocity throughout the Complainant’s immediate neighborhood in early September, 2006, Complainant’s roof as well as numerous other roofs in the near vicinity sustained wind damage resulting in many concrete roof tile pieces being blown off the several roofs. Complainant maintained that the manner of affixing the roof tiles was substandard, unacceptable and contrary to express recommendations from the product’s manufacturer. More specifically, it was contended that two nails or fasteners for each separate tile piece were required and not only one as apparently used in the installation of Complainant’s roof.

9. Respondent declined to undertake or complete any remedial measures after extensive consultation with its experienced subcontractor, the Registrar’s Inspector and perhaps most significantly, a representative of the roof tile product’s manufacturer. Respondent also denied responsibility for the blown off tile pieces that was determined to be attributable to extreme weather conditions and not to the manner of installation. Complainant was required to replace the blown off tiles by the Homeowner’s Association at his (Complainant’s) own expense.

10. At the hearing, Complainant’s sole evidence was ostensibly based upon his own internet research and upon provisions contained in purportedly applicable building code sections as well as upon portions of the manufacturer’s installation manual. The lone expert report previously obtained by Complainant after an on-site examination wholly omitted any mention of a nailing deficiency. No opinions of any other expert nor of an otherwise knowledgeable individual were introduced that tended to confirm Complainant’s admittedly strong belief that the use of a single nail or fastener was inadequate or improper. On the contrary, the communicated determinations of several experienced persons, including the product manufacturer’s representative, failed to establish the existence of any installation deficiency in that respect. It must be held that Complainant did not sustain his applicable burden of proving by substantial, probative

and reliable evidence that the manner of installing the roof tiles by or on behalf of Respondent through its selected subcontractor was indicative of any poor workmanship or of any material and prejudicial deviation from plans, specifications, local codes or express manufacturer’s recommendations.

11. Nothing in this decision is intended to deprive Complainant of his rights, if any, to initiate and pursue potentially available claims, if not already done, under his home insurance policy for the expenses incurred in rectifying the damages to the roof tiles that followed the extremely adverse weather conditions in the neighborhood.

12. As part of the construction of Complainant’s home, Respondent had provided a laminated countertop over certain cabinets in the laundry room. Complainant was afforded a prior opportunity to make a color selection for such countertop and did so, specifying the sample identified by the designation of “Fleece” as the selected color. A replacement of the initially installed countertop was made necessary due to a correction in the dimensions of the originally provided cabinetry beneath the countertop.

13. Although Complainant claimed that the originally installed top was closer, if not identical, to the selected color, the replacement top was claimed to be somewhat different in appearance with respect to its color. It did appear that both colors were of an off-white appearance and further that Respondent had ordered, provided and installed a laminated countertop having the “Fleece” color on the replacement countertop that is presently in the laundry room. The testimony at the hearing was conflicting as to whether or not the color of the presently installed countertop adequately matched the color selected by Complainant or whether the extent of difference, if any, was attributable to a dye lot variation. No valid basis is found to exist for the disbelief of either party’s version. In any event, it is found and determined that the differences in the white shadings claimed to have been selected as compared to the

product installed is effectively minimal so as to fall within acceptable industry tolerances and not to constitute a material and prejudicial deviation by or attributable to Respondent. Stated alternatively, Complainant failed to sustain his burden of proving any wrongdoing by Respondent in providing and installing a countertop shown to substantially match the selected Fleece color.

14. The final alleged deficiency still remaining in issue related to the type and manner of installation of a built-in microwave oven feature over an electric self-cleaning oven in the kitchen. The installed Kitchen Aid microwave is admittedly an appliance, normally separately treated as not forming part of the residential construction for which a building contractor would be responsible as opposed to the product’s manufacturer. However, in this case, the built-in nature of the microwave unit and also the inclusion of an appliance warranty program coving this and other appliances at additional cost paid as part of the overall construction and purchase contract serves to generate a measure of continued responsibility on the part of Respondent for this household feature that could be and was, in fact, selected by this homeowner from several options made available by Respondent to prospective purchasers.

15. It appeared that a malfunction in the originally installed microwave that may have contributed to a fire in such unit resulted in a replacement of that unit under the warranty program administered by a third party. Respondent caused a thorough examination of all electrical wiring to and from the installed unit, assuring that there were no electrical deficiencies. A somewhat similar experienced problem with the replacement microwave prompted still another replacement under the warranty program. Additionally, at some point in time, the door to one of the microwave units was replaced.

16. Complainant contends that the microwave installed is of an improper type for use as a built-in unit. It was not effectively disputed that the product manufacturer,

Kitchen Aid, had discontinued the model shown on the purchase documents indicating the selection by Complainant, but the installed unit was shown to have been the designated successor unit for the older model. In addition, although these models were admittedly countertop units, the manufacturer made available a trim kit specifically designed to enable the installation of that model to appear to be a built-in microwave unit. The installation in Complainant’s home included such trim kit feature.

17. Complainant purportedly received advice from an unidentified service technician sent by the company administering the warranty program not to use the presently installed microwave for any duration over a few minutes. Somewhat surprisingly, such workman did not immediately disconnect the appliance so as to prevent further use if a realistic operational danger had been perceived. Advice was also apparently given that the trim kit for the unit was installed upside down. Complainant did not present any persuasive testimonial or documentary evidence by any expert or knowledgeable individual to support the correctness of the advice given by the technician. Further, it was shown that the trim kit was specifically designed by the manufacturer making it available for the identified unit in such a manner that it could not be inverted without obstructing the operation of the unit’s door, thereby indicating that the installation in Complainant’s kitchen was consistent with the design of the kit and was not installed upside-down.

18. The Complainant also contended that the installed microwave was improperly installed too close to a heat source. However, the data sheets applicable to the unit in Complainant’s home, introduced into evidence, expressly stated that this unit may be installed directly over normal heat sources, such as a self-cleaning oven unit, and it was further demonstrated that numerous dwellings constructed by Respondent as well as by other builders in the community substantially mimic the placement of the kitchen oven and microwave features that exist in Complainant’s residence.

19. It is found and determined that all applicable duties and responsibilities of Respondent, as the builder, general contractor and seller with respect to the design and placement and to the propriety of offering and installing the identified microwave appliance for Complainant’s home have been adequately discharged. Complainant must seek and obtain any and all further relief by pursuing available entitlements under the applicable appliance product warranty program.

20. A belatedly requested amendment to the within complaint at the initial hearing session relating to the alleged misalignment of the installed microwave unit was the subject of an objection by Respondent who claimed not to have received adequate prior notice of the inclusion of such additional item of complaint as part of the instant hearing. The tribunal sustained Respondent’s objection and that portion of complaint about the microwave’s alignment was excluded from further consideration. Such ruling was and is intended to be without prejudice to the timely filing of another complaint by Complainant against Respondent in the event that this item, if determined to be valid, is not promptly rectified.

21. The evidence failed to adequately prove that Respondent had committed any wrongful act resulting in detriment to Complainant or that it did not substantially comply with the terms and conditions of the written directives issued by the Registrar’s Inspector. No uncorrected workmanship violations or material and prejudicial deviations from applicable plans, specifications, local codes or manufacturer’s recommendations on the part of or attributable to Respondent were sufficiently demonstrated by reliable, substantial and probative evidence presented at the administrative hearing.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) 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 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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 evidence of record failed to sufficiently establish that Respondent has violated any of the provisions of A.R.S. §32-1154(A) as charged in the issued Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Cases Numbered 06-1972 and 06-1972W be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Dated: July 11, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington Street (6th Floor) Phoenix, AZ 85007

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