ALJDEC decisions subject to certification as final

07F-M2160-ROC · Registrar of Contractors · 2008-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2008 APPEARANCES: The Complainants appeared in their own behalf. Eleanor Brodie, Owner, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The parties entered a contract in July, 2006, whereby the Respondent would replace an awning at the front, and install an awning at the rear of the Complainant’s[1] home in Apache Junction. The price term was $9,415.15, plus $250.00 for an extra beam for a total of $9,665.15. 2. The Complainant testified they wanted a new awning with a gable because their previous awning which extended from the front of the house for approximately 10 feet, blocked a more complete view the Superstition Mountains from parts of the house including the living room. 3. The Complainant spoke with the Respondent’s salesperson, “Jared”. The Complainant wanted a portion of the awning which was over the front entry and living room windows to be peaked (a gable) with the front of the gable open thereby allowing for a greater view. In the Fox Engineering diagram referenced during the hearing, the gable portion of the awning is described as a “peaked patio cover”. The Fox diagram is an independent peaked patio roof structure and is technically not part of an awning across the entire front of a house. The patio structure is not shown on the hand drawn diagram prepared by Jared and it is uncertain how it was to have fit as part of the installed awning at the Complainant’s home. 4. The Respondent obtained the building permit from Apache Junction and in the latter part of July, 2006 constructed the awning with a gable. However, the front portion of the gable is closed (obstructed) by awning sheets (pans) running from the peak to front edge of the awning. This leaves the Complainant with essentially the same view as before the installation of the new awning. 5. The Complainant testified he informed Jared of the mistake and was told it would be taken care of. Based on this, the Complainant completed payment for the awning. 6. Aside from the view at the front of the gable being obstructed, the awning extends nearly eleven feet from the Complainant’s home. There was some evidence that under the ICBO standards in effect at the time the permit was issued by Apache Junction, the awning desired by the Complainant should only extend ten feet. [2] 7. On May 10, 2007, the Complainant filed the Complaint with the Registrar of Contractors (ROC). 8. In addition to the asserted problems with the gable, the Complainant alleged the front and rear awning leaked, there were misplaced screw holes in the pans of the front and rear awning, front pans were not straight, scratched and dented pans front and rear, rear awning pans cut too short, rear support post too short, and improper rear awning pitch. 9. ROC Inspector Beau Cruz (Cruz), performed a jobsite on May 30, 2007. 10. On May 30, 2007, Cruz issued a Corrective Work Order (CWO) which stated the parties had reached an agreement on all issues. Except for the gable issue, the Respondent was to correct all items in accordance with the agreement. As for the gable issue, the Respondent was to research the possibility of constructing the gable desired by the Complainant, and if Apache Junction approved and the Complainant signed a waiver (as to leaks), correct in accordance with the agreement. 11. Cruz testified that the front awning is still susceptible to leaks because of gaps at approximately three joints or seams. He went on to testify that at the front awning, the pans with misplaced screw holes have been replaced, the pans which were not straight, were scratched and dented, had been corrected. At the rear awning, leaks did not appear corrected, misplaced screw holes (pushed too far and punctured pan material) were not repaired, and the scratched and dented rear awning pans had been painted but the paint did not match. The short pan problem, support post problem and rear awning pitch were satisfactorily corrected. 12. The Respondent’s Qualifying Party, Eleanor Brodie (Brodie) testified attempts were made to comply with the CWO. However, no clear evidence was given regarding Apache Junction code requirements for construction of the gabled awning requested by the Complainant or even if such an awning could be installed. According to the Respondent, the current awning would limited to a 10 foot projection with center beam and bracket approved by the city inspector, and the overhang “boxed in” around the beam. The deck built by the Complainant was not to code and the Complainant would have to install the footers for the gable posts under the deck.[3] Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(2), departure from plans and specifications or building code prejudicial to another; (A)(3)/ A.A.C. R4-9-108 workmanship, (A)(7), a wrongful act with substantial injury, and (A)(23) failure to take appropriate corrective action. 1. The Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence Culpepper v. State, 187 Ariz. 431 (1996 App.)[4], A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 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). 2. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. Based on the evidence, the hand drawn plan (Exhibit 9) called for an 11 foot awning and the Fox Engineering diagram showed 10 feet. The Apache Junction building ordinance requirements are not established irrespective of the references to the 10 feet in the Fox diagram by the Respondent in her fax communications to Inspector Cruz. The hand drawn diagram does not show any type of gabled awning. The allegation of departure from plans and specifications with respect to the gable is based on the discussions between the parties. Normally such oral specifications are notoriously unreliable in conveying accurate information when it comes to construction matters. However, in this case the Complainant testified that he informed Jared that the gable was being constructed contrary to the plans and according to the Complainant, Jared acknowledged this and agreed to correct the error. This testimony has not been disputed and in addition, the Respondent fired Jared, indicating that the Complainant’s assertions were accepted as true. The Respondent also attempted to find a way to make the corrections for the gable. Considering the evidence in its entirety, it is concluded the specifications required an open gable, and the evidence establishes a violation of (A)(2). The prejudice is the diminished view. 5. The evidence establishes violations of (A)(3)/A.A.C. R4-9-108 and (A)(23) , Cruz testified with respect to his initial inspection, the CWO, and the condition of the awning at the time of the prehearing inspection. The front awning is still susceptible to leaks because of gaps at approximately three joints or seams. The rear awning leaks did not appear corrected, misplaced screw holes (pushed too far and punctured pan material) were not repaired, and the scratched and dented rear awning pans had been painted but the paint did not match. The evidence was not refuted and it establishes the above (A)(3) and (A)(23) violations. 6. There is no substantial evidence to establish a violation of (A)(7) because there is no competent evidence to determine what constitutes a substantial injury based on the Complainant’s obstructed view. 7. The violations of (A)(2), (A)(3), and (A)(23) have been established and an Order to correct the items other than the gable problem would be reasonable. However, the gable problem is unique because it is unknown what Apache Junction requires or allows. Absent this information, an Order to correct would be arbitrary. This leaves monetary restitution as a possible remedy, but the financial value of the loss of the view is not easily determined. Restitution in the form of removal of the front and back awning and return of money paid appears to be a reasonable solution. The fact that over seven months have passed since the CWO and the requirements for the gable correction are still unknown strongly suggests a Sunpower of Arizona v. Registrar of Contractors, 166 Ariz 437 (App. 1990) resolution wherein the Appeals Court approved restitution in the form of removal of the installed solar heating system and return of the money paid by the Complainant. Recommended Order It is recommended that upon the effective date of the Order issued in this matter[5] that the Respondent’s Class C-03 license shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished one of the following: 1. Accomplishes appropriate and effective remedial work on the items set forth in Conclusion of Law no. 5, above and reaches an agreement with Complainant for payment to compensate Complainant for the loss of the gable view, or 2. Removes the entire awning structure and returns to the Complainant the amounts paid by Complainant for the awning, or 3. Concludes other mutually acceptable arrangements with Complainant.

Done this day, January 31, 2008

______________________________________ Allen Reed Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The Complainants will be referred to in the singular unless otherwise necessary. [2] Exhibit 9, a diagram of the proposed awning shows it extends 11 feet from the house. According to the parties, Apache Junction has amended its building code by changing from ICBO (International Conference of Building Officials) standards to IBC (International Building Code) standards. The current building code requirements for the type of awning desired by the Complainant was not made a matter of record. The evidence did not clearly establish the past or current applicable Apache Junction code requirements. The 10 foot standard was based on the Fox Engineering diagram in the hearing file but its relationship to any ICBO or IBC standard is unknown. [3] This information is based on Brodie’s fax to Cruz dated June 21, 2007(copy in hearing file). It attributes these assertions to the Apache Junction inspector, Fred Klinger. However, the hearsay is unreliable and insufficiently clear regarding what type of awning will be acceptable, and what the code requirements are. The Respondent’s assertions of what may be acceptable to Apache Junction cannot be given significant weight. [4] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [5] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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