ALJDEC decisions subject to certification as final

07F-M1725-ROC · Registrar of Contractors · 2008-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2008 APPEARANCES: Complainant Jack Konopski appeared on his own behalf. Mike Schern, Esq. represented Respondent Belmont Homes, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Belmont Homes, Inc. (“Belmont”) 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 1. Belmont is the holder of a Class B- license (No. 153079) issued by the Registrar of Contractors (“ROC”). Thomas Fitzgerald is Belmont’s qualifying party and corporate officer. 2. In 2003, Belmont contracted with Paul and Libby Paine for the construction of a custom home located at 7260 Eagle Crest Drive, Lot 41, in Mesa, Arizona. The credible evidence of record established that Belmont constructed the home according to the plans and specifications provided by the Paines, and that Belmont worked closely with the Paines, especially Mrs. Paine, regarding the specific finishes for the home. 3. Toward the end of construction, Mrs. Paine was diagnosed with lung cancer, and due to Mrs. Paine’s declining health, the Paines decided to sell the home. 4. In August 2005, Complainants Jack and Elizabeth Konopski purchased the home from the Paines. 5. On March 5, 2007, the Konopskis filed a complaint against Belmont with the ROC alleging in pertinent part the following: Please refer to the Building Confidence Program Report made by Inspector Mr. Ted Gerold. After unsatisfactory attitude of the Belmont Homes Inc’s corporate officer Mr. Thomas Fitzgerald towards the inspection report and ongoing malicious destruction of my home notwithstanding tranquility of my life for the last fourteen month[s], by filling (sic) this complaint we are giving Belmont Homes Inc final days to complete all work as per Building Confidence Report dated 1/24/07 to the satisfaction and according to the industry standards.

Attached to the complaint was the Building Confidence Report.

6. ROC Inspector Ted Gerold investigated the Konopskis’ complaint. Inspector Gerold conducted a jobsite inspection on April 24, 2007. 7. On May 2, 2007, following the jobsite inspection, Inspector Gerold issued a Corrective Work Order (“CWO”) under which the ROC gave Belmont days to take corrective action as follows: Contractor to complete and or correct the following by appropriate means:

1) Drywall repairs through out as necessary especially areas lacking texture and poor workmanship at radius corner beed (sic). 2) Garage service door needs refinishing. 3) Correct poor workmanship of repairs to interior doors through out especially putty/glue residue, mismatched red colored fillers, unfinished areas around hardware, rough finished areas and damaged door stops. 4) Interior doorjambs should be replaced where hinge placements were adjusted beyond 1/8”. Also replace all missing hinge screws. 5) Center molding between living room screen doors cut too short. 6) Poor touch up at patio door frames. 7) Replace cracked floor tile where necessary. 8) Replace any floor tile with lippage exceeding 1 credit card thickness. 9) Replace mismatched tile at master bath entry. 10) Guest bath vanity tile side splashes have outside corners that are either too sharp or don’t fit properly. 11) Damaged fan blades in bedroom. 12) Mismatched paint sheen through out. 13) Over painting of colors at outside corners. 14) Remove paint over spray on BBQ, Auto, and exterior window frames where necessary. Note: In this inspector’s opinion this contractor is not responsible for the change of drywall texture from Santa Fe to skip. No action regarding this change is required by the contractor.

8. On July 13, 2007, the Konopskis filed an addendum to their complaint alleging the following: [T]here are three pumps at the pool equipment center of my home at 7260 e eagle crest dr. #41 mesa, az. [F]irst, pool and spa filtration pump, second, water feature pump, third, spa pump. [T]he water feature was very loud one or it seemed at the time, from the day we move-in/purchase the house. [O]n several occasions while attending other pool equipment issues, we together with the technicians addressed the loud pump problem. [T]he last technician advised us that the cause of the noise were (sic) most likely the bearings and if the noise gets unbearable then the pump is under warranties and will be replaced. [C]ouple of days ago the second pump started to have troublesome noises. [I] contacted the the (sic) installer who advised me that my two years warranty is out and [I] am out of luck. [I] contacted the builder who told me the same (copy of the fax attached). [I] have not purchase[d] the pumps and as such do not have any warranties for this equipment. [T]he pumps were purchased by the builder. [W]e get two years builder warranty. [W]e are filing this complaint on advise (sic) of ROC legal department and base[d] on on- line publication re: “Equipment warranties v. Filing a complaint with the ROC” (copy attached). Which clearly states entitlement to seek remedy of such a dispute through the ROC channels.

9. On August 9, 2007, the Konopskis filed a second addendum to their complaint alleging the following: [S]afety requirements for the swimming pool. ARS. 36-1681. were completely disregarded by the contractor. [T]he swimming pool was constructed with no valid permit. [T]he swimming pool was inspected (my request) by the fire department and was assessed as complete failure and unsafe for use. [T]he contractor several times ignored my concerns. [A]ttached photos of the fire department findings. [S]liding door bed 3- no self locking and self latching device [S]liding door kitchen – no self locking and self latching device [S]liding door living room – no self locking and self latching device [M]aster bedroom door - no self locking and self latching device [T]rough and the bottom outside of the negative edge wall of the swimming pool – completely unsecured open to the public.

10. Prior to the commencement of the hearing, outside the presence of the Administrative Law Judge, the parties concluded a settlement agreement regarding all but one of the items of complaint. The terms of the settlement agreement were read upon the record. 11. The terms of the aforementioned settlement agreement are as follows: a. All the items delineated on the CWO have been addressed to the Konopskis’ satisfaction with the exception of item numbers 1 and 4 and the addendum item regarding the sliding doors; b. Prior to April 9, 2008, Belmont will remove one of the existing doors and match the four doors that need to be replaced, and have those doors installed on or before May 1, 2008; and c. Regarding the sliding door issue, Belmont will address this issue by making the appropriate adjustments as expeditiously as possible, but not later than May 1, 2008. 12. The Administrative Law Judge finds the terms of the foregoing settlement to be the product of knowing and voluntary action on the part of each party. 13. The parties further stipulated that only one issue remained for adjudication on the merits, that of the drywall texture. Mr. Konopski asserted that he is entitled to receive a Santa Fe texture, rather that the skip trowel texture as presently exists on the drywall. Mr. Konopski presented evidence that the original specifications for the home called for a Santa Fe texture on the drywall. See Exhibit 2. Mr. Konopski testified that he believes that the specifications contained in the contract between the Paines and Belmont apply to him. Mr. Konopski testified that Belmont had advised him that Mrs. Paine had requested that the drywall texture be changed from Santa Fe to skip. Mr. Konopski testified that he did not believe Belmont’s contention. Mr. Konopski did not present evidence of workmanship deficiencies in the drywall. 14. Inspector Gerold testified that he could not comment on the contractual obligations of the parties. However, Inspector Gerold testified that the Konopskis purchased the home from the Paines, not Belmont, and as such, the Paines are responsible for providing to the Konopskis what was actually purchased by the Konopskis. 15. Mr. Fitzgerald testified the he worked closely with the Paines in the design and selection process for the home, and that the home was in the design stage for a year. Mr. Fitzgerald further testified that the spec sheet provided by Mr. Konopski (Exhibit 2), is a “boilerplate” spec sheet, and that there is not one home that he has built during his career that has not changed during the construction process. Mr. Fitzgerald credibly testified that multiple items contained within the home do not presently match the specifications for the home because Mrs. Paine had requested numerous changes to the specifications throughout the construction process. Mr. Fitzgerald gave some examples of the items that changed, such as the stucco finish on the exterior of the home changed from a sand finish to a cat’s paw finish. Mr. Fitzgerald further testified that the Paines closed on the house in June 2005, and that they expressed no dissatisfaction with the drywall finish and that it had been textured for six months prior to closing. Mr. Fitzgerald further testified that the City of Mesa passed final inspection on the home and issued a Certificate of Occupancy on June 8, 2005. See also Exhibit A. Regarding any workmanship deficiencies, Belmont asserted that it stands behind its work. CONCLUSIONS OF LAW 1. In this proceeding, the Konopskis bear the burden to prove, by a preponderance of the evidence, that Belmont is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its November 15, 2007 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 2. 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). 3. The Administrative Law Judge concludes that the Konopskis have failed to meet their burden of proof as to all of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications . . . in any material respect which is prejudicial to another without consent of the owner . . .” The credible evidence of record failed to established that Belmont departed from plans and specifications. The credible evidence of record established that Belmont’s contract was with the Paines and that any subsequent changes to specifications were requested by the Paines and performed by Belmont prior to the Konopskis purchasing the home from the Paines. As such, Belmont had consent from the owners (the Paines) to depart from the specifications regarding the drywall texture. Therefore, the Administrative Law Judge concludes that Belmont did not violate A.R.S. § 32-1154(A)(2). 5. 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 Belmont 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 evidence of record, that the Konopskis failed to establish that Belmont failed to perform its work in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Belmont did not violate A.R.S. § 32-1154(A)(3). 6. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Belmont a CWO directing it to accomplish specified remedial work within a stated period of time. Mr. Konopski did not address the issue of workmanship deficiencies relating to the drywall texture, and the other items were addressed in the settlement agreement between the parties. As such, the Administrative Law Judge concludes that Belmont did not violate A.R.S. § 32-1154(A)(23). 7. 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, from the evidence presented, that the Konopskis failed to establish that Belmont committed a wrongful or fraudulent act resulting in substantial injury. Therefore, Belmont did not violate A.R.S. § 32-1154(A)(7). 8. The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Belmont’s license. This matter should be closed based upon the settlement agreement between the parties. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Belmont’s license, and that Case Number M07-1725 be closed. 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, April 15, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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