ALJDEC decisions subject to certification as final

08F-S0120-ROC · Registrar of Contractors · 2009-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2009; 9:00 a.m. APPEARANCES: Complainant Marsh Development, Inc. was represented by Mr. Matthew Meaker, Attorney-at-Law. Respondent Foxworth-Galbraith Lumber Company was represented by Ms. Melinda Cekander, 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 Foxworth-Galbraith Lumber Company 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 134752. 2. Complainant Marsh Development, LLC is a licensed Arizona general contractor who subcontracted Respondent to perform the window and door installations to a custom built residence in Sonoita, Arizona. This Complaint concerns those window and door installations. 3. The Agreement to install these particular windows and doors was entered into between the parties in September 2006. There is insufficient evidence to find which contractor was responsible for installing the flashing (water seal) on the job. Since this was a custom-built home some of the materials and design features are extraordinary. 4. There is no scope of work defined in any written Contract specifying which party was responsible for the flashing and no evidence that the responsibility for the flashing was assigned by verbal agreement. 5. Registrar of Contractors Inspector Mike Nieves testified. He is the Inspector who was assigned to this case. He testified that ordinarily it is the installer of the windows and doors who also installs the flashing, but this is not always the case. Inspector Nieves testified that sometimes other contractors on a job are responsible for installing the flashing. He testified that in this case, for all he knew, the stucco contractor could have been the contractor responsible for installing the flashing. Inspector Nieves received his information about the Respondent’s work from the Complainant’s employee Mr. Jason Marsh. 6. Mr. Jason Marsh was a witness for the Complainant. He testified that he expected the windows to be installed per manufacturer’s specifications, but that he had no idea what those specifications entailed. 7. Respondent produced two consultative witnesses who themselves are experienced in construction and one is a licensed contractor in Arizona and California. Mr. Brian Timothy and Mr. Steve Robinson testified that they inspected the job site and determined that the Respondent’s work was not defective. 8. There is no dispute that after installation of the windows and doors a great deal of water leaked into the home. However, even after corrective work had been performed by a third party hired by Complainant, the water continued to intrude into the home until headers were removed from over the affected areas. These areas were not Respondent’s responsibility. 9. Mr. John Herrington performed the reinstallation work and he testified that he could render no opinion as to whether Respondent’s work was defective. 10. Inspector Nieves did issue a written Corrective Work Order (CWO) to the Respondent dated February 6, 2008. He issued an addendum to the CWO dated April 10, 2008. However, based on the Inspector’s testimony and the other evidence of record, it is found that the Inspector’s CWO was not supported by the same amount of credible evidence that is in the record of this hearing. 11. In addition to the evidence produced in this hearing, it is found that the parties are currently engaged in a civil lawsuit over this same controversy. Depositions were taken in the civil lawsuit and portions thereof were made a part of this hearing record. That case is Foxworth-Galbraith Lumber Company v. Marsh Development, et al., Santa Cruz County Superior Court, Case No. CV2007-0033. This Respondent is Plaintiff and Counter-Defendant in that case as this Complainant filed a counter-claim. In that Superior Court action the parties are litigating the same issues of responsibility and damages as here. 12. Deposition testimony by the homeowner in the civil trial indicated that she and her draftsman made a number of significant design changes to the windows and doors during the course of construction. She also testified in deposition that some of the windows and doors continued to leak even after reinstallation. She further testified that water intrusion ceased at the windows and doors after Complainant removed the headers. 13. The evidence proved that a manager of Respondent agreed to make corrections to the problem areas, but that he had no authority to speak for the Respondent in the matter. The evidence proved that only a regional Vice-President would have the authority to bind the Respondent to such a significant obligation. 14. There is insufficient evidence in the record as a whole to find that the problems caused at this residence were the responsibility of Respondent to correct, or that Respondents workmanship was defectively performed or was below minimum workmanship standards.

15. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. The documentary evidence proved that Respondent was conducting business in the name of “Foxworth- Galbraith Lumber Company,” when the name on the Registrar of Contractors License records is “Construction Service Foxworth- Galbraith Lumber Company.” 16. Respondent failed to include its license number preceded by “ROC” on documents used in the conduct of its business as licensed Arizona contractor. See: Resp. Ex. 13.

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, 15, 23 and 3 (namely A.A.C. R4-9-108, Workmanship Standards), and 13 (namely A.R.S. § 32- 1124.B). 3. Complainant has brought this Complaint and must bear the burden of proving the allegations by a preponderance of the evidence. A.A.C. R2-19-119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508, (App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 4. There is insufficient evidence to conclude that Respondent violated A.R.S. § 32-1154.A.23 or A.R.S. § 32-1144.A.3 (namely, A.A.C. R4-9- 108) by failing to obey a written directive from the Registrar of Contractors without valid justification or performing below workmanship standards. 5. Respondent did violate A.R.S. § 32-1154.A.15 by conducting business in a name other than the name appearing on the license records of the Arizona Registrar of Contractors. 6. Respondent did violate § 32-1154.A.13 and A.R.S. § 32-1124.B. by failing to include its license number preceded by “ROC” on its business documents. 7. There is insufficient evidence to conclude that Respondent engaged in any wrongful or fraudulent act in this case in violation of A.R.S. § 32-1154.A.7 independently of the other violations concluded to have occurred. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 134752 be suspended for a period of five calendar days commencing on the effective date of this Order. It is further recommended that in the event the Respondent submits written proof to the Registrar that Respondent has taken all necessary steps to ensure that all of its business related forms and documents fully comply with all requirements of A.R.S. § 32-1124.B, and has ceased conducting activity in a name other than the name appearing on the license records (or requested and received a formal name change from the Registrar of Contractors bringing itself into compliance with A.R.S. § 32-1154.15), on or before the effective date of the Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then in lieu of the aforementioned five-day suspension Respondents license shall be placed on disciplinary probation for a period of 90 days, commencing on the effective date of 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, April 21, 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