ALJDEC decisions subject to certification as final

06F-M2499-ROC · Registrar of Contractors · 2007-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 27, 2007. APPEARANCES: Dale Cillian appeared personally. Toll Brothers Az Construction Company was represented by its attorney, Todd Wiley, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Toll Brothers Az Construction Company (“Respondent”) is the holder of License No. 113644, a Class B- contracting license issued by the Registrar of Contractors. 2. On April 2, 2002, Dale Cillian (“Complainant”) and his wife, Rhonda, executed a Purchase Agreement and Receipt with Edmunds Toll Ltd. Partnership for the construction of a residence and the sale of a lot. The agreement was executed on behalf of Edmunds Toll Ltd. Partnership on April 23, 2002. 3. Respondent constructed Complainant’s residence. 4. By letter dated August 21, 2003, Respondent advised Complainant that the residence would be completed on September 26, 2003. 5. A Key Release Form dated September 25, 2003 was executed by Jennifer Bolcko of Westminster Title Agency advising Edmunds Toll Limited Partnership that all “conditions and/or contingencies of this sale have been met” and that it was authorized to release the keys to the residence to Complainant. 6. On September 25, 2003, a Special Warranty Deed conveying title to the completed residence and lot to Complainant and his wife was recorded with the County Recorder of Maricopa County, Arizona. 7. On or about October 1, 2004, Complainant submitted an extensive repair list to Respondent. 8. On or about April 11, 2006, Joe Nazeck of Fort McDowell Yavapai Materials Co. conducted a hammer test on Complainant’s driveway in response to a complaint about the driveway by Complainant. Mr. Nazeck found the driveway to be structurally sound. 9. On April 18, 2006, Bebout Concrete received a work order from Respondent requesting an inspection of Complainant’s driveway. An inspection resulted in a determination that chipping and voids at control joints could be patched. The work order noted that “after the H/O moved in, he moved approx. 100 large palms trees across drive as well as boulders…equipment went through drive.” 10. On or about April 20, 2006, Mark W. Alvin of Alvin Concrete, Inc. examined the driveway and opined that the cracks in the relief joints were normal. 11. On June 1, 2006, Complainant filed a series of complaints against Respondent with the Registrar of Contractors alleging statutory and regulatory violations in the construction of his residence. 12. In response to the filed complaints, the Registrar of Contractors’ assigned inspector, Ted Gerold performed a jobsite inspection at Complainant’s residence on August 8, 2006 to view the alleged deficiencies. 13. During the inspection, Inspector Gerold requested that Complainant show the cause of the loud sound problem in the house. Complainant was unable to show the source and Inspector Gerold did not hear any loud sound as described by Complainant. 14. As a result of his August 8, 2006 jobsite inspection, Inspector Gerold issued a Corrective Work Order dated August 18, 2006, which directed Respondent to timely perform remedial action to correct a defect on the master bathroom mirror and to correct excessive cracking and chipping along control joints in the driveway. 15. Cracks are expected in control joints. Cracking in control joints exceeding 3/8” is excessive and does not meet minimum workmanship standards. A contractor is responsible for performing necessary repairs to excessive cracking. 16. Respondent is found to have complied with the Corrective Work Order dated August 18, 2006. Although Complainant is unhappy with the aesthetic appearance of his driveway following the repairs to the control joints, there is credible evidence supporting the finding that the entire driveway meets minimum workmanship standards. 17. Respondent is found to have performed appropriate investigations of Complainant’s complaint of excessive noise emanating from the residence. Complainant has the burden of proving that any such excessive noise, which none of Respondent’s workers experienced, is the result of any deficient work performed by Respondent. Except for his own testimony, Complainant failed to present any evidence of the source of any excessive noise.

CONCLUSIONS OF LAW

1. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 2. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. Respondent has claimed that Complainant did not raise his complaint about the driveway within two years of Respondent’s performance of work, as required by A.R.S. § 32-1155(A). It is undisputed that Complainant closed on his residence in September 2003. It is also undisputed that he did not occupy the residence until July 2004. Therefore, Complainant’s complaint was timely filed. Op. Atty. Gen. No. I79-119.

RECOMMENDED ORDER

The Citation and Complaint issued by the Registrar of Contractors in Case No. M06-2499 is 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 40 days from the date of that certification.

Done this day, March 19, 2007

______________________________________ Brian Brendan Tully 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 ___________________________

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