ALJDEC decisions subject to certification as final

07F-M1813W-ROC · Registrar of Contractors · 2008-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2008 APPEARANCES: Complainant Sharon Franklin appeared on her own behalf. Andrew Lesniewski appeared on behalf of Respondents Lennar Arizona Construction, Inc. and U.S. Home of Arizona Construction Co. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondents Lennar Arizona Construction, Inc. (“Lennar”) and U.S. Home of Arizona Construction Co. (“U.S. Home”), collectively Respondents, are 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. Lennar is the holder of a Class B- license (No. 228129) issued by the Registrar of Contractors (“ROC”). Andrew Lesniewski is Lennar’s Vice- president of Operations. 2. U.S. Home is the holder of a Class B- license (No. 065983) issued by the Registrar of Contractors (“ROC”). Andrew Lesniewski is U.S. Home’s qualifying party. 3. In or about April 2006, Complainant Sharon Franklin purchased her newly constructed home located at 44069 West Yucca Lane in Maricopa, Arizona, from Lennar. According to the filed complaint, Ms. Franklin moved into the home in April 2006. 4. On March 16, 2007, Ms. Franklin filed a complaint against Respondents with the ROC alleging the following: 1. Second story pan flashing channels water flow from a valley above kitchen exterior door, causing water to infiltrate doors threshold and seep beneath tile during rain. Moisture and water buildup occurring behind door borders, and floor tiles and seam cracking occurring at side-door and kitchen floor tile. 2. Driveway apron chipped at gutter on East gate prior to moving in, but was never repaired by Builder. Spacing getting larger due to seepage and subsequent soil expansion. 3. No pan flashing drains next to front door causing rain waters to enter 16” inches (sic) into home upon rainfall producing water beneath floor tiles and behind front door border. 4. No drain channels in driveway or walks around front entry door; roof drains into this area causing water to buildup within courtyard basin and remain stagnate for weeks after rainfall resulting in increased insects. 5. Roof pan flashing discharges above main electric panel causing portions of the box dampness inside upon rainfall. 6. Circuit breakers have discharged without overloads or noted utility outages; Dishwasher does not have a dedicated circuit. 7. Living Room circuit and conduit faulty causing light to come on without touching rocker switch. 8. Unable to open window next to kitchen exterior door causing a fire hazard in the event of an emergency. 9. Drain cleanout under master bathroom vanity is improperly covered by a wood panel concealing plumbing joint protruding from drywall. 10. Missing HVAC register in master bathroom toilet enclosure causing heat accumulation and moisture buildup. 11. Open J-Box on ceiling in northeast bedroom. 12. Small gaps around upstairs hall bathroom tub/shower surround; tubs were not properly supported with proper underlay materials and necessary sealing to prevent water & moisture access. 13. Laundry room window drywall has gaps around frame; not properly finished by Builder. 14. Wall insulation properties throughout house in home inferior to model home, which R-Value and Noise acoustic value home purchased was based upon. Builders’ Sales Agent emphasized noise acoustic quality represented in “Desert Cedars” model series were engineered in home.

5. ROC Inspector Dennis Cook investigated Ms. Franklin’s complaint. Inspector Cook conducted a jobsite inspection on May 23, 2007. 6. On June 19, 2007, following the jobsite inspection, Inspector Cook issued a Corrective Work Order (“CWO”) under which the ROC gave Respondents days to take corrective action as follows:

Contractor to make the following corrections by appropriate means:

1. Install gutters and downspouts as needed to direct roof runoff away from the entry doors. 2. Patch the chipped concrete apron adjacent to the curb & gutter, as per the jobsite agreement. 3. Install plastic caps and touch up paint as needed at the yard access gate and adjacent block, as agreed at the jobsite.

The balance of the items listed in the complaint were found to meet the standards of the industry, or were corrected prior to the jobsite inspection and no further correction is required.

7. Inspector Cook testified that he conducted a pre-hearing inspection on August 21, 2008, and at that time, all items listed in the CWO were “addressed to minimum workmanship standards”. Inspector Cook testified that the side courtyard door had been replaced, and that he inspected the threshold, the door seals, and inspected to see if light was visible through the seals, and that he could not detect any area of water intrusion. Inspector Cook testified that the door appeared to be properly installed and that the gutters were installed. When Ms. Franklin showed Inspector Cook photographs that were taken on the date of the pre-hearing inspection, Inspector Cook acknowledged that he saw evidence of water staining at the pre-hearing inspection in the form of dark colored grout at the interior of the door. See Exhibits 3a through 3d. Inspector Cook also testified that some infiltration of water and dust is not improper according to the Workmanship Standards for Licensed Contractors, which state “some infiltration of moisture and dust is normally noticeable around doors and windows, especially during high winds and heavy rain.” Page 64. However, those standards also state that “excessive infiltration resulting from open cracks, poorly fitted doors and windows or poorly fitted weather stripping is unacceptable.” Id. The Workmanship Standards also state that when a threshold leaks water, there is no acceptable tolerance and a contractor should make necessary repairs. Id. at 65. A water test was not performed. 8. At the outset of the hearing, Ms. Franklin stated that the only item of complaint that remains at issue is the water intrusion. 9. Ms. Franklin testified at hearing that water intrusion into the home has been a recurring problem, and that Respondents have attempted to resolve the issue in the past. Ms. Franklin testified that mold has also been an issue due to the water intrusion. Ms. Franklin further testified that water intrusion continues to persist notwithstanding the corrective measures taken by Respondents, such as installing gutters and replacing thresholds. Ms. Franklin suffers from several debilitating health issues and she asserted that the water intrusion is a “quality of life” issue for her. Ms. Franklin further wishes to sell her home and cannot do so without disclosing to a potential buyer the water intrusion issue. Ms. Franklin asserted that she would like for Respondents to take further corrective action to alleviate the problem. 10. Mr. Lesniewski testified at hearing that Respondents have performed all required action pursuant to the CWO. However, Mr. Lesniewski also contended that he learned at the time of hearing that the water intrusion issue continues to exist notwithstanding the corrective measures, and that Respondents are willing to investigate the issue further and perform any necessary repairs. Mr. Lesniewski contended that he does not believe disciplinary action is warranted due to the fact that Respondents have performed the required corrective work and have never denied Ms. Franklin’s repair requests. CONCLUSIONS OF LAW 1. In this proceeding, Ms. Franklin bears the burden to prove, by a preponderance of the evidence, that Respondents are subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its March 3, 2008 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 Ms. Franklin has met her burden of proof as to two of the ROC’s three charges. 4. 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 Respondents 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 evidence of record, that water intrusion remains an issue at Ms. Franklin’s home. Therefore, the Administrative Law Judge concludes that Respondents violated A.R.S. § 32-1154(A)(3). 5. 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 to Respondents a CWO directing them to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Respondents complied with the requirements of the CWO. Therefore, the Administrative Law Judge concludes that Respondents did not violate A.R.S. § 32-1154(A)(23). 6. 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 Respondents committed a wrongful act that substantially injured Ms. Franklin by failing to ensure that the water intrusion issue has been appropriately rectified. Therefore, the Administrative Law Judge concludes that Ms. Franklin established that Respondents violated A.R.S. § 32-1154(A)(7). 7. Based on the foregoing, it is appropriate for the ROC to impose discipline against Respondents’ Class B- licenses. 8. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Respondents’ Class B- licenses. 9. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Respondents’ licenses without providing a condition to reduce or eliminate same. 10. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Respondents’ Class B- licenses subject to the condition that Respondents can avoid such suspension by correcting in an appropriate, effective, and workmanlike manner the water intrusion issue at Ms. Franklin’s home, within thirty days of the effective date of the Order entered in this matter. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Within thirty days of the effective date of the Order entered in this matter, Lennar’s Class B- license (No. 228129) and U.S. Home’s Class B- license (No. 065983) shall be suspended until the ROC receives written proof that Respondents have corrected in an appropriate, effective, and workmanlike manner the water intrusion issue at Ms. Franklin’s home. If the ROC receives written proof that Respondents have complied with the foregoing condition on or before the date specified above, then the above provided license suspensions shall not take place and the Citation and Complaint in Case Nos. M07-1813 and M07-1813W shall 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, September 8, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Armando Contreras, Acting Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

-----------------------

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