ALJDEC decisions subject to certification as final

07F-G1977-ROC · Registrar of Contractors · 2008-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2008 APPEARANCES: Complainant Robert Terhune appeared on his own behalf. Fred Gamble, Esq. represented Respondent Stoneworks, Etc., L.L.C., doing business as Abbott Granite. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Stoneworks, Etc., L.L.C., doing business as Abbott Granite (“Abbott”), is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Abbott is the holder of a Class K-05 license (No. 194787) issued by the Registrar of Contractors (“ROC”).[1] Perry Abbott and his brother, Rusty Abbott, are the owners of Abbott. On or about July 28, 2006, Abbott performed warranty work at Complainant Robert Terhune’s home, a newly constructed home, constructed by general contractor William Lyon Homes, Inc. (“William Lyon”). The nature of the work was warranty repair work to the granite kitchen countertops. During the course of the work, Abbott’s employees utilized various vapor producing chemicals that were irritating to Mr. Terhune’s two children, both of whom have asthma. On June 19, 2007, Mr. Terhune filed a complaint against Abbott with the ROC. Mr. Terhune alleged the following: Conduct Complaint: The homeowner and children were present during this warranty work. 1) July 28, 2007 (sic), Abbott Granite, while doing warranty work, failed to provide information and or to notify/warn the homeowners that the chemicals used to perform the warranty repair work to the granite counter top would generate toxic fumes/vapors. That these fumes were intensified with the application of heat, a butane torch was used. The release of these toxic fumes/vapors triggered our two children to have an asthma attack, requiring that the children be placed on breathing treatments. A follow up doctors appointment was made with the children’s physician. 2) When requested Abbott failed to supply the correct Material Safety Data Sheets (MSDS) to the homeowner in a timely manner. The MSDS were requested so that the Terhune family could determine what chemicals they were exposed to. 3) July 28, 2007 (sic), Abbott Granite, while doing warranty work, failed to provide information and or to notify/warn the homeowners that upon completion of the warranty work, repairs to the granite counter top, that the unused mixed chemicals, hazardous waste, and the single edge razor blades used to perform the warranty repair work would be deposited into the homeowners (sic) trash can. This trash can was located inside of the homeowners (sic) house. This was done without the homeowner’s knowledge or permission. The burden of disposal was placed on the homeowner. 4) Abbott Granite failed to supply adequate buyer representation during the granite slab selection process.

Construction complaint: 5) Abbott Granite failed to repair/replace the damage (sic) granite counter top, chips, seam line and overall appearance of the granite counter top.

ROC Inspector Craig Williams investigated Mr. Terhune’s complaint. On July 31, 2007, Inspector Williams conducted a jobsite inspection. Present for the inspection were Mr. Terhune, Rusty Abbott, and Rodney Randolph, William Lyon’s representative. On August 3, 2007, following the jobsite inspection, Inspector Williams issued a letter to the parties advising the following in pertinent part: After completing the jobsite inspection, we have determined that your complaint should be closed for the following reason(s):

1. Abbott Granite, while doing warranty work, failed to notify homeowners of toxic fumes/vapors. This inspector is unable to determine when or what sort of warning was given, if any. No action is required of the contractor.

2. When asked, Abbott Granite failed to supply the correct Material Safety Data Sheet (MSDS). The homeowner has the correct MSDS in his possession. No action is required of the contractor.

3. Abbott Granite disposed of chemicals and razor blades in the homeowner’s trash can without permission. Debris/waste was disposed of properly prior to this jobsite inspection. No action is required of the contractor.

4. Abbott Granite failed to adequately represent the buyer during the granite slab selection process. The homeowner signed a form to select his own granite. No action required of the contractor.

5. Abbott Granite failed to repair or replace the damaged granite countertops. This item was corrected prior to the jobsite inspection. Tops meet workmanship standards. No action is required of the contractor.

7. Inspector Williams testified that he conducted a pre-hearing inspection on July 1, 2008, at which only Mr. Terhune was present, and that there was no change in the condition of the granite. Inspector Williams testified that he has been at the Terhune home a total of four times, during which he conducted jobsite and pre-hearing inspections for this matter and for the matter concerning Mr. Terhune’s complaint against William Lyon. Inspector Williams testified that he found no deficiencies regarding the granite countertops at the inspections concerning Mr. Terhune’s complaint against William Lyon, and that he testified during that hearing, that the granite countertop installation met industry standards. Inspector Williams testified that the areas about which Mr. Terhune has complained, have all been addressed by Abbott and meet industry standards. Inspector Williams further testified that because granite is a natural stone, versus a man made product, it inherently contains flaws. Regarding the hazardous/dangerous materials, Inspector Williams testified that those should have been properly disposed of by Abbott. 8. Mr. Terhune spent a considerable amount of time at hearing testifying about his background and experience in the Marine Corps. and working for the City of Phoenix, where he is currently employed at a waste water treatment plant in a Grade 4 position, and submitted Exhibits 4 through 17, demonstrating his training and education. Mr. Terhune asserted at hearing that Abbott took no precautions prior to or during its work at his home on July 28, 2006, to protect his family from the toxic fumes, and that as a result his children suffered asthma attacks necessitating breathing treatments. Mr. Terhune testified that Abbott has yet to repair two small areas where scratches are present in the granite. Mr. Terhune submitted photographs into evidence of areas of the granite countertops (Exhibit 1 and attached to Exhibit 18), that he asserted were not properly addressed by Abbott. The Administrative Law Judge finds that the photographs, coupled with the probative and credible evidence of record, fail to depict deficiencies in the granite countertop, and further fail to establish that Abbott’s workmanship did not comport with industry standards. 9. On cross-examination, Mr. Terhune acknowledged that he did not inquire of Abbott as to what materials would be used in the repair process, nor did he ask Abbott to cease the performance of the repair work upon detection of the fumes. Mr. Terhune further acknowledged that he, not Abbott, chose the granite slab that was installed by Abbott. Mr. Terhune further acknowledged that his son Mark was diagnosed with asthma in 1995, and that his son Matthew was diagnosed with asthma in either 1997 or 1998. As such, Mr. Terhune was fully aware of his sons’ medical conditions and the consequences associated with those conditions, such as the fact that environmental conditions can trigger an asthma attack. Mr. Terhune acknowledged that it was his decision to leave the children in the home while work was being performed, rather than take the precaution of not having them present in the home, and further, did not advise Abbott that the children have respiratory problems. 10. Mr. Terhune submitted into evidence copies of his sons’ medical records from an August 9, 2006 visit to their pediatrician, stating the reason for the visit as asthma. See Exhibits 39 and 40. The Administrative Law Judge does not find these records probative in this case, as the physician visit was twelve days after Abbott performed its work at the home. 11. At hearing, Abbott stipulated to the fact that the Terhune boys have asthma and had difficulty breathing due to the vapors. 12. Mr. Abbott testified at hearing that it is not uncommon to have to perform warranty work after granite countertops are installed, and that Abbott utilized top of the line products to perform that work. Mr. Abbott testified that the types of materials used for such work are epoxies, and that such products are inert when hardened, as they are used in food preparation areas. Mr. Abbott acknowledged that the products have a “nasty smell in liquid form”, and that heat is used to accelerate the process. Mr. Abbott testified that denatured alcohol is used to clean the residue from the epoxy, and that this is the least aggressive product that is effective. Mr. Abbott further testified that Abbott has a strict company policy regarding disposal of its debris, and such policy requires its employees to remove all debris from the premises. Mr. Abbott acknowledged that it was a mistake to leave behind any debris, and that such omission was unacceptable in that it is not only dangerous, but unprofessional, and such inconvenience should not be placed on the homeowner. CONCLUSIONS OF LAW In this proceeding, Mr. Terhune bears the burden to prove, by a preponderance of the evidence, that Abbott is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(13), and/or (A)(15) as charged by the ROC in its February 13, 2008 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Terhune failed to meet his burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Abbott with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible and probative evidence of record, that Abbott performed its warranty work at Mr. Terhune’s home in a professional and workmanlike manner. Regarding the improper disposal of the construction debris, Abbott has acknowledged its wrongdoing, and has an appropriate company policy in place to avoid such occurrence. Further, fortunately, no harm befell anyone by such disposal. Therefore, under the circumstances presented, the Administrative Law Judge concludes that Abbott is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), contractors are required to include their contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement would be applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Mr. Terhune did not address this alleged violation. In view of the foregoing, the Administrative Law Judge concludes that Abbott is not in violation of A.R.S. § 32-1154(A)(13). Under A.R.S. § 32-1154(A)(15), a contractor is subject to discipline for “acting in the capacity of a contractor under any license under this chapter in a name other than as set forth upon the license.” Mr. Terhune did not present any probative evidence at hearing regarding this alleged violation. Therefore, the Administrative Law Judge concludes that Abbott is not in violation of A.R.S. § 32-1154(A)(15). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Mr. Terhune failed to establish that Abbott committed wrongful or fraudulent acts that substantially injured him or his family. Abbott performed its warranty work at the home in its usual and customary manner with materials that are commonly used in the industry. Abbott had no prior knowledge of Mr. Terhune’s sons’ medical conditions, and therefore, would have no reason to warn the Terhunes of any potential issues that may arise from the use of the chemicals. The responsibility for protecting his children falls upon Mr. Terhune, given his foreknowledge of their conditions, and the knowledge of the likelihood of environmental hazards causing an asthma attack. Mr. Terhune voluntarily chose to keep his children at home while the work was being performed, and chose not to request that Abbott cease its work once the discovery of the fumes was made. Further, substantial injury was not proven, as Mr. Terhune did not seek medical attention for his children until twelve days later. Regarding the improper disposal of the construction debris, Abbott has a policy in effect for such disposal, and while not followed in this particular case, the policy is ongoing, and further, substantial injury was not proven. Therefore, the Administrative Law Judge concludes that Abbott is not in violation of A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Abbott’s license. The ROC’s Citation in Case Number G07-1977, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Abbott’s license, and that the Citation issued in Case Number G07-1977, together with the Complaint upon which it is 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 will be 40 days from the date of that certification.

Done this day, July 14, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of July, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Abbott’s contracting license was canceled on October 22, 2007. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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