ALJDEC decisions subject to certification as final

06F-M2245-ROC · Registrar of Contractors · 2007-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 7 February 2007 APPEARANCES: Complainant: Suzanne Richmond; Rosemary Kremer, neighbor and friend of Complainant. Respondent: Travis Williams, General Counsel, Cornerstone Homes; Curtis Walker, Customer Service Manager, Cornerstone Homes; Adam Frost, Customer Service Respresentative, Cornerstone Homes. Others: Paul Terek, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 2, 7, 16, 23, 3 (namely AAC R4-9-108) and 13 namely ARS § 1124(B). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. The ROC issued a Corrective Work Order (“CWO”) dated 18 July 2006 ordering Respondent to take remedial action with regard to certain items listed in the CWO, which related to previous work Respondent had undertaken during the construction of Complainant’s home at 11328 East Enrose Street, Mesa, Arizona. Complainant moved into the home in March 2005. 2. At hearing, the parties stipulated that only two items remained at issue from the CWO: 1) Adjustment of the garage side door to minimize the gap in the weatherstrip, and 2) installation of a 3rd outside hose bib. 3. ROC Inspector Terek did a pre-hearing inspection of the remedial work done by Respondent and found that the 3rd hose bib had not been installed. He also found the garage side door to be operating properly. It appeared that the gap Complainant complained kept re- appearing around the door after Respondent would attempt to fix the gap was due to the door not being properly shut. The door had to be pressed slightly against the weather-striping in order for the anti-burglary pin of the door lock to engage in the strike plate hole. If only the bevel lock portion of the doorknob lock was engaged, there was daylight visible around the door, but when the anti-burglary pin as well as the bevel lock was properly engaged, the door shut completely, with no significant daylight visible around the door. Inspector Terek opined that C simply wasn’t closing the door completely, engaging only the bevel lock portion of the lock. Inspector Terek’s assessment was bolstered by Complainant’s own testimony, wherein she related that her neighbor, John Dominquez, also stated to her that she was not completely closing the door. 4. Respondent argued that Complainant was not entitled to a 3rd hose bib as she did not pay for that option and that only two hose bibs are standard on the homes Respondent builds; one in the front year and one in the back yard. R’s model home depicting the model of home Complainant purchased has three bibs, and Complainant stated that if the model had three hose bibs, so should her home. Respondent provided documentary evidence from other home purchases of the same model in the same area that revealed additional hose bibs beyond the basic two were purchased at $80.00 a piece. In addition, testimony revealed that there are other homes of the same model in the area that have only the two basic hose bibs. Complainant’s contract did not include any option line item indicating she had purchased an additional hose bib for $80.00. 5. Complainant also stated that the garage side door leaked water under the door sill. Inspector Terek determined that the concrete slab outside the door sloped away from the door. During his prehearing inspection, Terek did a water leakage test of the door using a garden hose, but didn’t detect any appreciable leakage. Terek further stated that if there was leakage under the door sill, that would be a caulking issue, which is a homeowner responsibility after the 1st year. As for the water swelling damage done to the masonite baseboard trim inside the garage sidedoor, Terek could not determine when the damage had occurred, and his first inspection was 13 July 2006, more than a year after Complainant took possession of the house.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A) in any manner. The weight of the evidence shows that the garage side door has been adequately repaired, that Complainant was not entitled to a 3rd hose bib as it was an option she did not purchase, and that any water leakage under the garage side door sill is her responsibility, as the homeowner, at this point in time.

RECOMMENDED DECISION In view of the foregoing, it is recommended that the ROC dismiss this complaint.

Done this day, February 9, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

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

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

By ___________________________ -----------------------

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