ALJDEC decisions subject to certification as final

06F-M2174-ROC · Registrar of Contractors · 2006-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2006 APPEARANCES: Complainants were represented by their attorney, Travis Hill. Beazer Homes (“Beazer”) was represented by its attorney, Ryan Toftoy. B C I Bebout Concrete Inc. (“Bebout”), appeared through it customer care manager, Vivian Spinnato (“Spinnato”). 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. The above-captioned matters were consolidated for the purpose of hearing, since they involved the same issues and entailed the use of the same witnesses. Beazer was the general contractor on the new home construction purchased by Complainants and Bebout was the concrete subcontractor on said project. Complainants allege certain deficiencies in the concrete work provided by both Respondents and also allege a specified deficiency in the roof work performed by Beazer. These issues are discussed in the findings below.

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

a. Complainants contend that the concrete work on their driveway, garage slab, and back patio is substandard, due to splotchy coloring of the concrete in said areas. In addition, they contend that there is an uneven roof line or unsightly dip on a specified area of their tile roof. b. Amanda Hill (“Amanda”) appeared at the instant hearing and provided testimony. According to Hill, she noticed the claimed problem in the aesthetics of her concrete immediately after the concrete was placed. She brought her dissatisfaction to the attention of a Beazer representative and was advised to give the concrete adequate time to cure. c. Amanda testified that at the time of the final “walk-through” she again listed her dissatisfaction with the splotchy coloring of the concrete. Evidence of record showed that Respondent agreed to power-wash the concrete, in an effort to try and improve the look of the concrete. According to Amanda, the “closing” of her home purchase occurred on or about June 22, 2005. d. Complainants’ exhibit no. 5 was entered into evidence. This exhibit is a Beazer form entitled “Customer Care Service Request.” It shows items that were noted for service. Item no. 4 on this form merely states “power wash driveway.” It does not state anything about a claimed deficiency in the driveway concrete, nor does it state anything about the garage slab or the rear patio. e. It was undisputed that the driveway was power washed but Amanda claimed that said procedure did nothing to improve the look of the concrete. f. After giving the concrete time to improve and with little sign of significant improvement, Complainants again contacted Beazer regarding their dissatisfaction with the concrete. Beazer agreed, in what appears to have been an attempt to get an independent third party to view the concrete, to file a Registrar of Contractors’ Complaint against Bebout. The evidence of record was inadequate to support any finding that Beazer filed their Complaint against Bebout based on any agreement by Beazer with the issues cited by Complainants, but merely as an attempt to get a resolution of the issue. g. The Beazer Complaint against Bebout is Registrar of Contractors’ Complaint no. M06-1571. Beazer’s exhibit “A” was entered into evidence and it is a Registrar of Contractors’ form RC-C-007, from Jack Clark (“Clark”), one of the Registrar’s construction inspectors. The document is dated March 24, 2006 and sets forth Clark’s findings on the issue of the concrete. The document states, in pertinent part, that “the appearance of the concrete does not affect its ability to function as intended and this inspector is unable to determine that the spotty appearance is a result of poor workmanship.” Based on Clark’s findings, Beazer determined that the concrete was, in fact, acceptable within the standards applied by the Registrar of Contractors and dropped their Complaint against Bebout. h. Complainants were not satisfied with the outcome of Registrar of Contractors’ case no. M06-1571 and on or about May 3, 2006 filed the instant Complaints with the Registrar of Contractors. Complainants’ Complaint was assigned to Dennis Cook (“Cook”) another one of the Registrar’s construction inspectors. Cook appeared at the instant hearing and presented testimony regarding his findings on the concrete and the roof issue. i. According to Cook, the concrete “looked fine” and was within Registrar of Contractors’ standards for acceptable workmanship. Cook viewed the concrete on at least two occasions, at the original jobsite inspection and at a pre-hearing inspection. He indicated that it is not unusual for there to be a degree of blotchy coloring in concrete. Cook also testified that photographs submitted into evidence by Complainants made the concrete appear worse than the way it looks when viewed onsite. j. Cook further testified that he had discussed the matter with Clark, after he had made his initial decision, and was pleased to find out that Clark had previously viewed the concrete and concurred with his decision on this issue. k. Cook had viewed other issues, in addition to the issues of the concrete and the roof and issued a Corrective Work Order (“CWO”) to Beazer to correct four (4) of the other issues of the Complaint. Since these other four (4) issues were not raised at the instant hearing, it is assumed that they were properly corrected. Regarding the concrete and the roof issue, the CWO from Cook states, in pertinent party, that “the balance of the items listed in the Complaint were…found to meet the standards of the industry, and no correction is required.” l. In regard to the Complaint filed by Complainants against Bebout, Cook issued a Registrar of Contractors’ form RC-C-007 which provided, in pertinent part, that “it is this inspector’s opinion that the concrete slabs were installed as per the standards of the industry.” m. Complainants retained the services of Neil Brogren (“Brogren”), an independent home inspector to view the concrete and roof issues. Brogren has been a home inspector for eight (8) years in Arizona. He indicated that he has completed approximately 2,900 home site inspections. Brogren has never been a contractor and is not an engineer. n. Brogren opined that the concrete coloring is aesthetically unacceptable and is about the worst he has ever seen from a purely cosmetic point of view. o. Spinnato testified that the concrete work in question meets Bebout’s standards and the Registrar of Contractors’ standards for acceptable concrete work. She further indicated that the appearance of Complainants’ concrete is not unusual. p. Brogren also testified regarding the roof issue. According to Brogren, he observed a sag in the roof line on the west end of the roof. He also put a level on the roof and found an area that was somewhat out of level. Nevertheless, he could not say that the area he found out of level violated any specific Registrar of Contractors’ standard. q. Cook testified that on his original jobsite inspection he looked at the roof from ground level, from two different vantage points on the ground, and could not see any excessive sagging or dip in the roof line. Then, at his pre-hearing inspection, he used a ladder to take a closer look at the roof. Although he did not climb onto the roof, he viewed the roof from the top of the ladder and found the roof to be reasonably straight and within the tolerances allowed by the application of minimum industry standards for good and acceptable workmanship.

3. Complainants contend that due to the fact that they complained to Beazer about the splotchy finish on the concrete before “closing” and Beazer agreed to power wash the driveway, that these facts constitute some type of agreement of accord, binding Beazer to correct or replace their driveway to their satisfaction. Contrary to Complainants position, the evidence of record is inadequate to support any finding that Beazer entered into a binding agreement to repair or replace the driveway, in the event that Complainants continued to be dissatisfied with the aesthetics of the concrete.

4. The weight of the credible evidence of record was sufficient to support a finding that the concrete placed by Bebout, although not perfect, is within minimum industry standards and tolerances for acceptable concrete work. Thus, Complainants failed to sustain the requisite burden of proof on this issue.

5. It is further determined and held that the record presented herein was inadequate to support any finding that there was any aspect of the roof installation or roof framing that was indicative of substandard and unacceptable workmanship. Thus, Complainants failed to sustain the requisite burden of proof on this issue.

6. Beazer was not shown to have failed to comply with the CWO issued by Cook.

CONCLUSIONS OF LAW

1. Complainants have 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. Complainants 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 (nos. M06-2174 and M06-2175), together with the Complaints upon which they are based, be dismissed.

Done this day, December 26, 2006.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, 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