ALJDEC decisions subject to certification as final

07F-G1210-ROC · Registrar of Contractors · 2008-07-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2008.

APPEARANCES: >Complainants appeared in their own behalf. >Respondent appeared through Herbert Ralph Shepard, its qualifying party and a member of the LLC entity.

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. Complainants have been and still are the owners and initial occupants of a residence that had been constructed as a new home by Respondent as the project’s general contractor.

2. At the outset of the administrative hearing, Complainants stated that the sole items presently in issue between the parties related to the venting of the attic space and

also to the condition and appearance of the natural concrete flooring surfaces throughout the dwelling. Therefore, a finding is warranted that, as to all other items previously enumerated and identified in the originally filed complaint and addendum in this action, all of those other complaint items had been either rectified or were otherwise no longer in issue and being pursued by Complainants.

3. With respect to the adequacy of the venting provided in the attic space, Complainants’ evidence consisted solely of their belief that their monthly electric bills have been much higher than they felt was appropriate for their size of home. Other than a reported indication that Complainants had received from an independent, privately retained inspector, to the effect that the quantify of vents provided generated some degree of suspicion as to their potential adequacy to help with the cooling of the structure, no competent or probative sworn testimonial or documentary evidence was introduced to sufficiently establish that the designed and provided venting was substandard or otherwise unacceptable. On the contrary, it appeared from credible testimony that the venting details contained in the applicable plans and specifications for the home were approved by the local building authorities, were substantially followed by Respondent and that both the extent and manner of attic ventilation were passed at and after all subsequent inspections by such building authority prior to the issuance of a Certificate of Occupancy.

4. The independent inspector hired by Complainant did not testify at the hearing. Nor were any details provided as to such inspector’s expert or knowledgeable qualifications or to otherwise support any determination that the electric bills were either unduly high under the conditions of customary use by the occupants of the home. The evidence of record failed to sufficiently establish that any purported excessively elevated level of electric usage was attributable to a lack of adequate attic ventilation.

5. The flooring throughout the home, installed prior to Complainants’ purchase was a decorative finished concrete material. It was not disputed that, at the present

time, numerous surface areas at scattered household locations contained visible discolorations on the surface and also some extent of chipping, especially at or near the customary high-traffic areas. However, the evidence of record failed to sufficiently demonstrate that these admittedly unsightly results were proximately attributable to any act or omission of Respondent in the selection, mixing and application of materials as opposed to a possible, or even a probable, lack of effective periodic ongoing maintenance on the part of the homeowners in applying necessary sealers at regular intervals or to any lack of continuing due care by the home’s occupants. Any other finding would be impermissibly based upon pure conjecture.

6. It did appear that at the time of initial occupancy, the floor surface was completely sealed by Respondent and that several existing chips had been filled and re-finished so as to achieve compliance with applicable minimum workmanship standards and tolerances as to color matching. In point of fact, no complaint as to the concrete floor or its surface appearance was communicated until the time of the first of three jobsite inspections that took place in late February, 2007. almost two years after the date of Complainant’s initial occupancy (March 30, 2005).

7. When such alleged concrete floor surface deficiency was allowed to be added by mutual consent to the list of filed complaint items at the jobsite meeting, the Registrar’s assigned Inspector was unable to determine that the Respondent’s work was the cause of the floor discoloration and chipping condition, and no remedial action by Respondent was required in the issued directive. A second jobsite inspection did result in the inclusion of appropriate action on the part of Respondent to either demonstrate that proper ongoing care instructions for the concrete flooring had been communicated to Complainants or, if no such instructions had been given, to undertake and complete effective remedial measures be undertaken and completed.

8. At the hearing, the Inspector testified that, upon receipt of credible information that prior instructions had been given by Respondent, including the identification of

appropriate sealing materials to be utilized, his original determinations to the effect that no action would be required from Respondent would remain unchanged and that he could not hold Respondent responsible for any then- present appearance problems with the concrete floor surface.

9. Additionally, the assigned Inspector had not included any determination of inadequate attic venting in either of his directives. Nor did such Inspector’s testimony at the hearing confirm the existence of any substandard or insufficient attic ventilation, such opinion being influenced by the fact that the quantity and placement of the attic vents had been approved by the local building authority both at the plan check and at the inspection stages.

10. It must be held that the evidence failed to support any finding of uncorrected or improperly corrected workmanship items, of the commission of any wrongful acts or of any failure to timely and properly comply with terms and conditions of issued Corrective Work Orders. It must be further determined that, irrespective of a high degree of personal dissatisfaction on the part of Complainants, they did not sustain their burden of proof, applicable in these administrative disciplinary proceedings, by sufficiently establishing that any portion of the present discoloration and chipping condition and appearance of the flooring was proximately caused by Respondent’s construction efforts or that the quantity or placement of the attic vents was deficient or otherwise unacceptable so as to improperly generate excessive electricity bills.

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 totality of the evidence of record, as presented at the administrative hearing, failed to adequately establish that Respondent has violated any of the identified provisions of A.R.S. § 32-1154(A), as charged in the within Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number G07-1210 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 25, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

_____________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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