ALJDEC decisions subject to certification as final

07F-M1943-ROC · Registrar of Contractors · 2008-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2008. APPEARANCES: H. Charles Johnson appeared personally. American Specialty Builders, LLC was represented by its member and qualifying party, Timothy David Martin. 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. American Specialty Builders, LLC (“Respondent”) is the holder of License No. 205866, a Class KB-02 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Respondent constructed a residence owned by H. Charles Johnson (“Complainant”). The residence originally was a spec house. 3. The residence was completed in December 2005. However, Complainant occupied the house in August 2006 after he was unable to sell it. 4. Complainant subsequently filed a written Complaint with the Registrar alleging 97 areas of deficient workmanship by Respondent. The Registrar designated the Complaint as Case No. M07-1943. 5. In response to the filed Complaint, the Registrar’s assigned inspector, Geoff Galgan, performed a jobsite inspection on June 25, 2007. As a result of his inspection, Inspector Galgan issued a Corrective Work Order which addressed each of the 97 allegations. The Corrective Work Order identified specific items that the inspector opined needed to be corrected to minimum workmanship standards and items that required no action by Respondent. 6. The Registrar sent a copy of the Corrective Work Order to each of the parties. 7. The Registrar issued a Citation and Complaint in Case No. M07-1943 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23) and (3), namely A.A.C. R4-9-108. 8. The Registrar forwarded Case No. M07-1943 to the Office of Administrative Hearings, an independent agency, for formal hearing. 9. On August 29, 2008, Inspector Galgan performed a pre-hearing jobsite inspection at Complainant’s residence. 10. At the commencement of the hearing, Complainant stated that the following Complaint items remain at issue: 12, 13, 17, 18, 20, 25, 47, 55, 68, 81, 84, 96, and 97.

Item 12: Broken roof tiles 11. Inspector Galgan’s Corrective Work Order did not require Respondent to perform any remedial repairs to roof tiles. 12. Complainant failed to present credible evidence that Respondent is responsible for performing any remedial repairs to his roof tiles.

Item 13: Roof tiles have chipped at corners 13. Inspector Galgan’s Corrective Work Order did not require Respondent to perform remedial repairs to this item because he was not able to verify the allegation. 14. Complainant failed to present credible evidence that Respondent is responsible for performing remedial repairs to the roof tiles.

Item 17: Gaps at sides of roll roofing might cause leaking 15. Inspector Galgan’s Corrective Work Order required Respondent “to correct by appropriate means.” 16. Respondent could not locate any gaps that could result in leaks. 17. Complainant failed to present credible evidence that there presently exists gaps that could cause leaks.

Item 18: Gap at plumbing vent flashing 18. In his Corrective Work Order, Inspector Galgan opined that “gap was not evident to [him] at the time of the inspection.” No action was required of the Respondent. 19. Complainant failed to present credible evidence that there is an improper gap at the plumbing vent flashing.

Item 20: Exterior grade is too high at the foundation of the master bedroom 20. As a result of his initial inspection, Inspector Galgan concluded that the grading work had been performed by others. Therefore, he did not require Respondent to perform any remedial work. 21. Complainant failed to present any credible evidence that Respondent was responsible for the exterior grade.

Item 25: Stucco cracks visible on the outside of the home 22. After his initial inspection, Inspector Galgan determined that the cracks were “less than one sixteenth of an inch and are not excessive.” Respondent was not required to make any repairs. 23. After he performed his pre-hearing jobsite inspection, Inspector Galgan determined that there are now stucco cracks exceeding tolerance. 24. Respondent is found responsible for repairing stucco cracks exceeding tolerance.

Item 47: South bedrooms are warmer than other bedrooms 25. The Corrective Work Order required Respondent to balance Complainant’s air handlers one time within the first year. 26. Complainant failed to present credible evidence to support this allegation.

Item 55: Minimal ventilation was provided in the attic area 27. The Corrective Work Order provided that “if the ventilation provided is that as provided in the building plans no action required of this contractor.” 28. Complainant failed to present credible evidence that Respondent failed to construct the attic per plans or that the attic ventilation is inadequate.

Item 68: Gap visible between underside of countertop and the top of the cabinet

29. The Corrective Work Order required Respondent to correct this condition by appropriate means. 30. As a result of his pre-hearing inspection, Inspector Galgan opined that this condition needed a little more painting performed by Respondent.

Item 81: Nail pops visible in drywall 31. The Corrective Work Order determined that Respondent was responsible for correcting this item by appropriate means one time within the first year. 32. Inspector Galgan testified that this item has been properly repaired by Respondent. He further testified that any additional nail pops are now an owner maintenance item.

Item 84: Front door deadbolt lock difficult to operate 33. At the initial jobsite inspection, Respondent agreed to correct this item. That item was incorporated into the Corrective Work Order. 34. After performing his pre-hearing jobsite inspection, Inspector Galgan opined that the lock operates properly. 35. Complainant failed to present any credible evidence that the lock has not been properly repaired.

Item 96: Exterior communication conduit is not installed 36. In the Corrective Work Order, Inspector Galgan opined that “contractor would be required to install if it was not but if it was damaged by others, no action required by contractor.” 37. Complainant failed to present credible evidence that Respondent failed to install the conduit.

Item 97: Rain will periodically infiltrate into the garage 38. In his Corrective Work Order, Inspector Galgan opined that “some infiltration from wind driven rain is unavoidable and garage doors are not required to be water tight no action required of the contractor.” 39. Inspector Galgan did not perform a water test of Complainant’s garage during his initial jobsite inspection. 40. During the pre-hearing jobsite inspection, Inspector Galgan did perform a water test of the garage using a garden hose. His water test lasted approximately 5 minutes. After performing his water test, Inspector Galgan opined that no areas of infiltrated water exceeded the 3/32” allowable tolerance. 41. Two stacked pennies equal 3/32” thickness. 42. Tony Hecht is a certified home inspector. 43. On September 4, 2008, Mr. Hecht performed a water test of Complainant’s garage. His scope of work was “to water test the north double garage door…by running water down the roof tiles and the stucco above the double garage door and onto the door itself to replicate the effect of a rainstorm and to quantify the amount of flooding and ponding on the garage floor 30 minutes after the water had been turned off.” 44. Mr. Hecht credibly testified that areas of Complainant’s garage still had water ponding beyond a depth of 3/32” more than 30 minutes after the water test had been completed. Mr. Hecht had used two-penny stacks located throughout the garage for measuring the ponding water. 45. Respondent is responsible for performing remedial repairs to Complainant’s garage and driveway to alleviate the excessive ponding in the garage.

Corrective Work Order 46. Respondent is found to have substantially complied with the Corrective Work Order.

Respondent’s contracting license history 47. As mentioned in the Notice of Hearing issued by the Registrar, the Administrative Law Judge may review the Registrar’s official records after determining that a contractor has committed a violation as cited in a Citation and Complaint. 48. A review of the Registrar’s official records reflects that the Complaint in this matter is the only complaint against Respondent’s contracting license number.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. 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). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint in Case No. M07-1943 issued by the Registrar. The factual basis for this violation is Respondent’s deficient workmanship in Complainant’s garage and driveway resulting in excessive ponding in the garage. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint in Case No. M07-1943 issued by the Registrar. Respondent substantially complied with the written directive. The painting of repairs to the countertop and cabinet is a minor item. The stucco cracking beyond tolerance occurred after the issuance of the Corrective Work Order. The written directive did not require Respondent to perform remedial repairs to the garage and/or driveway to alleviate excessive ponding. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint in Case No. M07-1943 issued by the Registrar. Respondent’s repairs to the countertop and cabinet, the stucco cracks now exceeding tolerance, and the excessive water ponding in Complainant’s garage are below minimum workmanship standards.

RECOMMENDED ORDER Respondent’s License No. 205866 shall be suspended on the effective date of the Order entered in Case No. M07-1943 until the Registrar receives written proof, and approves such proof, that Respondent has performed remedial repairs to the work performed to the countertop and cabinet, to the stucco cracks beyond allowable tolerance, and to the garage and driveway necessary to alleviate excessive water ponding inside the garage as described in the above Findings. If Respondent performs the above-described remedial repairs on or before the effective date of the Order entered in Case No. M07-1943, and the Registrar accepts proof of the proper remedial repairs having been completed, then the above-provided license suspension shall not take place, and the Citation and Complaint in Case No. M07-1943 shall be closed.

Done this day, September 24, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Armando A. Contreras, Acting Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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