ALJDEC decisions subject to certification as final

06F-M2116-ROC · Registrar of Contractors · 2007-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2007

APPEARANCES: Complainant appeared on his own behalf. Beazer Homes (“Beazer”) was represented by its attorney, Ryan Toftoy. Heritage Interiors Inc. (“Heritage”) appeared through its manger, John Bombardier (“John”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. During the course of the instant hearing, Heritage appeared and made a motion to consolidate the above captioned Complaint filed by Complainant against Heritage with the ongoing hearing on the Complaint filed against Beazer. Since both Complaints involved similar issues and entailed the use of the same witnesses, for good cause shown, the two cases were consolidated.

2. Heritage did not present the above-described motion to consolidate until after the hearing against Beazer had been proceeding for a couple of hours. John was advised that Complainant had already testified regarding the carpet issues and said testimony would not be repeated. Notwithstanding this information, John elected to have the Complaint against Heritage heard at the time of the Beazer hearing.

3. Beazer is the general contractor that constructed Complainant’s home. Heritage is Beazer’s subcontractor that installed the carpet in the home.

4. At the outset of the scheduled hearing, Complainant indicated that the Complaint against Beazer was limited to only the issues of the joints in the wood panels of the cabinets in the kitchen, the seam in the living room carpet, and an issue regarding deficiencies in the French door glass for the family room. Beazer objected to allowing the issue on the cabinets panes going forward based on its contention that this issue has already been decided by the Registrar of Contractors in docket no. 06F- M2117-ROC, Le v. Mastercraft Cabinets, Inc. (“Mastercraft”) In the Mastercraft case, the Registrar issued an Order indicating that there were no deficiencies in the cabinet doors and therefore, the Complaint should be dismissed. Complainant petitioned for a rehearing in that matter and the rehearing petition was denied by the Registrar. Although the Order in the Mastercraft case would not be final until April 17, 2007, Complainant indicated that he did not intend to appeal to Superior Court. Thus, it was ruled that the Registrar has already spoken on the issue of the cabinet door panels and since Mastercraft Cabinets, Inc. was Beazer’s subcontractor, that decision should have preclusive effect in the instant matter and was barred from further adjudication in the instant hearing.

5. Although Complainant was precluded from proceeding against Beazer on the issue of the cabinet door panels, nothing in this ruling would serve to prevent him from re-filing on this issue, in the event he elects to appeal the above-described decision of the Registrar and receives a favorable ruling from the Superior Court. In such an event, the statute of limitation against Beazer on this issue should be deemed to be tolled, during the pendency of any possible Superior Court proceeding.

6. The following salient facts were adduced at the hearing and are important to note:

a. Complainant contends that there are flaws in the glass of the French doors in the room he calls the breakfast room. He claims that these flaws are visible from 15 feet away. According to Complainant, some of the defects are in the glass and others are on the surface. b. Complainant called a neighbor of his, Pamela Pershing-Lezo (“Lezo”) as a witness. Lezo testified that the claimed defects are visible from 15 feet away. She also took photos, which purport to show the defects from the equivalent of a 15 foot distance. According to Lezo, one of the scratches is quite long and dark. c. Lezo was not shown to be a professional photographer, nor an expert in glass. d. Eric Vidal (“Vidal”), another one of Complainant’s neighbors, also appeared and testified at the hearing. Vidal testified that he could see the flaws in the glass from 15 feet away. e. Neil Brogren (“Brogren”), a private home inspector, was hired by Complainant to inspect the issues set forth in the filed Complaint. Brogren testified that he could see the flaws in the glass from 15 feet away. f. Brogren has never been a licensed contractor and has no special knowledge regarding glass in French doors. g. Subsequent to filing the instant Complainants, the matters were assigned to one of the Registrar’s inspectors, Jack Clark (“Clark”). The inspector appeared at the instant hearing and provided testimony. h. Clark testified that he has conducted several jobsite inspections at Complainant’s home, including the original jobsite inspection and various pre-hearing inspections. At the original jobsite inspection he viewed not only the French doors in question, but also the French doors in the master bedroom. According to Clark, he viewed the French door in the breakfast area twice, once at the original inspection and again at the pre- hearing inspection conducted just prior to the instant hearing. Clark testified that from 15 feet away he cannot detect any defects that would be beyond the minimum standards applied by the Registrar of Contractors. i. It is important to further note, that Clark did order Beazer to correct the visible defect in the French door glass in the master bedroom, which was visible from 15 feet away. The record presented at the instant hearing showed that Beazer complied with this directive. j. Complainant testified that the initial carpet installed in his living room was unacceptable, due to highly visible seams. Respondents agreed to replace the carpet at the time of the initial jobsite inspection by Clark and thus, there was nothing for Clark to decide, at that time. k. Respondents replaced the carpet, subsequent to the original jobsite inspection. Complainant is still not satisfied with a seam in the living room, claiming that same remains highly visible. l. Evidence of record showed that the Registrar of Contractors does not have a guideline that carpet seams need to be invisible, only that their visibility not be excessive. m. Vidal testified that the seam is highly visible, stating it is right in the middle of the carpet. Brogren also testified that he feels the seam is highly visible from a standing position. Brogren admitted he does not have prior work experience in the carpet industry. n. Clark viewed the carpet seam for the first time at the pre-hearing inspection for the instant matter. He viewed the seam from two different sides of the room. He testified that it was visible from one side, but not the other. Thus, he concluded that the seam was showing up as a result of the way light from the windows was striking the area, when viewed from a particular angle. Based on these observations, he concluded that the seam was not excessively visible. o. John testified that he has extensive carpet experience. He claims that the seam was not readily visible to him, when he entered the room. He then examined the seam and determined that it was made properly, with no manufacturing or workmanship defects in the area. He admits the seam is slightly visible, but does not believe seams need to be totally invisible.

6. The weight of the credible evidence of record is found to be sufficient to support a finding that although the glass in French doors in the breakfast area and the carpet seam may not be perfect, they are within minimum industry standards for good and acceptable workmanship. Complainant failed to sustain the requisite burden of proof on these issues and therefore, both of the above-captioned Complaints should be dismissed.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondents violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondents of the provisions of A.R.S. §32-1154A, as charged in the Citations.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that these Citations (M06-2114 and M06-2116), together with the Complaints upon which they are based, 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 in this matter will be forty (40) days from the date of that certification.

Done this day, April 16, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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