ALJDEC decisions subject to certification as final

07F-P0203-ROC · Registrar of Contractors · 2009-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, and April 27, 2009. APPEARANCES: Complainants Mr. Ricardo and Ms. Julie Carrera were represented by Mr. Robert J. Higgins, Attorney-at-Law. Respondent Staley Construction and Remodeling, LLC was represented by Mr. Stephen C. Bergsten, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Staley Construction and Remodeling, LLC is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class B License number 111312. 2. Complainants Mr. Ricardo and Ms. Julie Carrera purchased their residence in Show Low, Arizona which had been constructed by Respondent. They filed the instant Complaint against the Respondent with the Arizona Registrar of Contractors on January 31, 2007, and an addendum thereto on March 14, 2007. The Complaint and addendum alleged several construction defects. 3. The Complaint was assigned to Registrar of Contractors Inspector Tom Sandoval who conducted a job site inspection on February 20, 2007. Inspector Sandoval issued a written Corrective Work Order (CWO) as a result of his inspection on February 22, 2007. The CWO directed Respondent to make five corrections to the construction of the house. On March 6, 2007, Inspector Sandoval issued a corrected CWO only to add that the subject license was canceled on August 24, 2006, and that the Respondent could not do or subcontract the ordered work. Inspector Sandoval testified at the hearing that he conducted a pre-hearing job site inspection (April 16, 2009) and found that these items had been properly and timely corrected. There is no other substantial evidence proving the contrary. Complainants’ evidence supports the finding of correction by the Inspector as to these items. 4. As to the addendum to the Complaint, Inspector Sandoval conducted a job site inspection and issued a CWO dated April 20, 2007 in which he directed Respondent to correct a leak at a skylight. This item also was proved to have been properly and timely corrected by the testimonial evidence from both parties. 5. The remaining issue in dispute is by far the most significant, and is the allegation of a defect in the construction of the footers and stem wall which allegedly resulted in a “separation of stem wall leading into the basement area of our home.” (See: Complainants’ Exhibit 1, Complaint addendum of May 8, 2007.)

6. Inspector Sandoval rendered his written opinion as to this allegation in a letter dated May 18, 2007, stating that the damage was “caused by excessive water while homeowner was away. No action required.” (See: Complainants’ Exhibit 9.) 7. The greater weight of evidence proved that Complainants had left their home to visit relatives for at least an overnight period and perhaps longer. When they returned Ms. Carrera heard a noise coming from the basement. When she investigated she saw a water leak coming from the hose bib which was spurting water onto and around the foundation. Mr. Carrera immediately shut off the main water supply to the house. Respondent’s position is that this water leak, coupled with the Complainant’s own construction of a wall in the basement which acted to retain the leaking water in an area around the foundation, was the real cause of the stem wall problem. 8. There is a discrepancy as to how much water had been seen leaking from the hose bib. Some evidence suggests that Complainants’ estimate of the rate of water leaking was substantially greater shortly after seeing the leak than it was after they alleged the problem was caused by defective construction of the footers and stem walls. Complainants did prove that their water bill for the month in question was not abnormally high, offering that as evidence that the rate of leakage was small. However, this has little probative value considering that the leak was occurring only while Complainants were away and the house was empty. Therefore, any abnormal metering of water leaking from the hose bib would naturally be offset by the fact that no one was normally consuming water by dishwashing, showering or flushing toilets, etc. 9. Complainants also produced a written inspection by Speedie and Associates, over the seal of Mr. Gregg Alan Creaser, a Registered Professional Engineer. The revised report is dated October 2, 2007. Mr. Creaser did not appear and testify. No one from Speedie and Associates appeared to testify. The evidentiary weight of the report is therefore substantially reduced. The report did call into question the construction of Respondent as to the stem wall, finding the foundation at the problem area to be inadequate. However, the report also noted that at one time there was standing water at the problem area, which by reasonable inference may be found to mean the water from the leaking hose bib. 10. The Speedie and Associates report also notes that the foundation met or exceeded the code requirements for the City of Show Low, and Speedie and Associates seemed to be basing the conclusion of inadequacy in large part not on what the City requires, but on what Speedie and Associates recommends, which is a recommendation exceeding the City requirements. 11. Also admitted into evidence was a report by Mr. James H. Matteson, another Registered Professional Civil engineer who did not testify at the hearing. Thus the evidentiary weight of his report is also reduced. He stated in his letter of August 11, 2007 that he had inspected the area and reviewed the reports of Speedie and Associates and Registered Professional Civil Engineer Mr. Robert R. Koons, and agreed with their conclusions that the Respondent’s work on the foundation was a “contributing factor” to the problem. (See; Complainants’ Exhibit 14). 12. Only the aforementioned Mr. Koons testified as an expert witness for the Complainants. He testified that the footings and foundation were not adequate, and not up to code. He testified that he only inspected what the limited areas that had been exposed by others. He said he saw no bond beams had been installed, but the other evidence from Respondent proved that bond beams had been installed. Mr. Koons testified that the foundation was not up to code, but the City of Show Low approved the Respondent’s work. Mr. Koons testified that the grading around the house was not adequate. 13. Inspector Sandoval testified that in his opinion the additional wall Complainants constructed in the basement acted as a dam when the hose bib leaked which caused the leaked water to stand as a small pond around the foundation, causing the crack in the stem wall. Inspector Sandoval affirmed that the City of Show Low’s requirement of 18” depth for the footings was conclusive upon him as an Registrar of Contractors Inspector, and the footings did meet or exceed the City’s requirement in that respect. He testified the 24” depth requirement was only the recommendation of Speedie and Associates. He further testified that his inspection revealed evidence of the existence of a bond beam. 14. Mr. Frank Copp testified. He is the mason who performed the actual work of laying the foundation. Mr. Copp testified that the footings were at minimum 18” and in some places 20”. He testified that this met the code requirement. He testified to the installation of two bond beams, anchor bolts and rebar. Mr. Copp testified that he was present when the City Inspector performed all inspections relative to his work, and that the City Inspector approved all of his work. There was no evidence of any failed inspections as to the footings and foundation. Mr. Copp was aware of the water leak that had occurred, and his opinion was that the water leak caused the problem with the stem wall. 15. Respondent’s Principal Mr. Adam Staley testified. His credible testimony was that the plans for the house were approved by the City of Show Low, and the house was built according to those plans. The City of Show Low issued a Certificate of Occupancy upon Respondent’s completion of the construction. He testified that the site grading was per plans and up to code, and the City approved the grading. 16. Mr. Staley testified that initially Mr. Carrera had told him that the leak was causing flooding into the basement, but later lowered his estimation of the amount of water that was leaking. 17. Based on the record as a whole, the greater evidence supports the finding that the house was built per approved plans, and met the City of Show Low code requirements. The problem in the stem wall was caused by the excessive amount of water leaking onto and pooling at the foundation. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.7, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. There was insufficient evidence in the instant record to prove that Respondent had not constructed the Carrera home up to all workmanship and agency standards, or failed to comply with any written director from the Registrar, or otherwise engaged in any wrongful or fraudulent act in the facts of this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint P07-0203, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 4, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com