ALJDEC decisions subject to certification as final

09F-3197-ROC · Registrar of Contractors · 2009-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2009 at 8:00 a.m. APPEARANCES: Complainants Edmond Zencirci and Melissa Zencirci appeared through Thomas Moring, Esq., Pak & Moring PLC; Respondent Trilogy Custom Builders LLC appeared through Richard L. Cobb, Esq., Lake & Cobb PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On October 11, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC225473, Class B- for residential general contracting to Respondent Trilogy Custom Builders LLC, a limited liability company. On December 3, 2008, the Registrar received a complaint against Respondent’s license from Complainants Edmond Zencirci and Melissa Zencirci, which alleged 23 specific deficiencies in Respondent’s construction of their $1.4 million custom home. The Registrar sent a copy of the complaint to Respondent for its immediate attention. The Registrar assigned the complaint to Inspector Scott Deering for investigation. Inspector Deering performed an initial jobsite inspection on February 20, 2009 and, on February 27, 2009, issued a Corrective Work Order (“CWO”) directing Respondent within fifteen days to correct certain deficiencies, in relevant part as follows: Complaint #1 – Master bath vanity mirror not installed There was no documentation provided requiring a mirror at this location. No action required by the contractor. . . . .

Complaint #6 – Front door does not seal properly. Contractor to correct by the appropriate means. . . . .

Complaint #14 – All hardware for windows and sliders is not oil rubbed bronze. No documentation was provided requiring oil rubbed hardware is to be installed on all windows and sliders. Hardware is standard for these applications. No action required by the contractor.

Complaint #15 – All sliders and doors leading outside have scratches and different color variations. Contractor to correct paint finish on the exterior metal frames on the rear of the house by the appropriate means. . . . .

Complaint #17 – All sliding glass doors leading to the back yard are missing handles. No action required by the contractor.

Complaint #18 – Window in family room is peeling around inside window frame. Contractor to correct by the appropriate means. . . . .

Complaint #20 – AC unit was placed in the master attic, but plans show otherwise. Documentation provided with complainants signature on pre- drywall inspection noting location of HVAC systems. No action required by the contractor. . . . .

On February 20, 2009 and on March 20, 2009, the Registrar received two addenda from Complainants to their complaint, which alleged an additional seven items. Inspector Deering performed a second jobsite inspection on March 20, 2009 and, on April 23, 2009, issued a second CWO, directing Respondent within fifteen days to correct certain deficiencies, in relevant part as follows: Addendum date stamped 2-20-2009

Complaint # 1 – All bathrooms including powder room missing baseboards. At the time of the jobsite inspection the baseboards were installed in all bathrooms except the master bathroom. Contractor to install tile baseboards in master bathroom by appropriate means.

On April 17, 2009, the Registrar received Complainants’ request that a citation be issued against Respondent’s license. On August 7, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (7), (9), (23), and (3) (namely A.A.C. R4-9-108). On August 14, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on December 1, 2009. Inspector Deering testified. At the beginning of the hearing, the parties’ attorneys informed the Administrative Law Judge that they had a court action pending and stipulated to limit the evidence at hearing to the eight items of Inspector Deering’s CWOs set forth above. Complainant Mr. Zencirci testified. Complainants submitted one exhibit. Respondent presented the testimony of two witnesses: (1) Kenneth Bates, its construction manager; and (2) Andrew Santorios, its managing member and qualifying party. Respondent also submitted four exhibits. Hearing Evidence The original contractor that Complainants hired to build their house was unlicensed. Complainants were involved in the criminal prosecution of that contractor for unlicensed contracting. When Complainants’ former contractor left the jobsite, the foundation for the house had been poured and the house had been framed. Complainants hired Respondent to complete construction. Inspector Deering performed a prehearing jobsite inspection on November 25, 2009. At that time, Complainants were not living in the house but had rented it to tenants, a Mr. and Mrs. Copple. Although Mrs. Copple allowed Inspector Deering onsite to conduct the prehearing inspection, she told him that Respondent was not allowed on the property. Inspector Deering did not require Mrs. Copple to allow Respondent access to the prehearing jobsite inspection. Respondent’s representatives waited at the street. Master bath vanity mirror (Complaint #1) Mr. Zencirci testified that plans required a mirror over the vanity. No plans were submitted. Inspector Deering testified that, at his prehearing inspection, a television had been mounted where Complainants said there should be a mirror. Respondent submitted a page from the designer’s specifications book, which showed a television should be set into the niche wall above the vanity. The page did not show a mirror. Front door seal (Complaint #6) Inspector Deering testified that, originally, the rubber seal at the bottom of the front door was ripped and the door at the handle side was not sealing. At his prehearing inspection, the rubber seal had been replaced. He testified that the door has a slight warp but, if it is closed and locked, seals. Oil-rubbed hardware for windows and sliders (Complaint #14) Mr. Zencirci testified that he and his wife had selected oil rubbed hardware to be used throughout the house. Although the bathroom fixtures were oil-rubbed hardware, the hardware on the windows and sliders was not. Inspector Deering testified that the hardware on the windows and sliders was standard for this kind of application. This is the hardware that would have come with the doors and windows. Mr. Bates testified that the hardware came with the doors and windows. If the hardware were replaced, it would void the manufacturer’s warranty. Color variations in sliders and doors leading outside (Complaint #15) Inspector Deering testified that, at the prehearing inspection, it appeared that Respondent had done work on the sliders and doors leading outside. But the paint at the top of the northern most rear door, which was a French door, approximately 6’ wide and 8’ high, was still not a uniform sheen. Inspector Deering admitted that the sheen was an esthetic issue and somewhat subjective. It was the only item that in his opinion still required correction. He believed that Respondent was willing to correct this last remaining item. Respondent challenged Inspector Deering’s testimony because its representatives were not allowed to attend the prehearing jobsite inspection. Because Respondent’s representatives were not afforded an opportunity to view or to photograph the door challenge Inspector Deering’s testimony, Respondent argued that a finding of any statutory violation would violate its right to due process. Missing handles on sliding glass doors (Complaint #17) Pictures of the sliding doors that Respondent submitted showed that the doors had a cup shaped handle on the interior of the doors. Inspector Deering testified that applicable code did not require door handles on the exterior side of doors, as long as people can get out of a structure to the outside. The doors were manufactured without exterior handles that were comparable to the interior handles. Mr. Zencirci testified that the sliding glass doors were missing handles on the exterior of the doors. Although he could open the doors from the outside “with difficulty,” his wife and children could not. Peeling frame on window in family room (Complaint #18) Inspector Deering testified that, at his prehearing inspection, he saw that Respondent had corrected this item. No other evidence was presented with respect to it. AC unit in master attic, not mechanical room (Complaint #20) Mr. Zencirci testified that the plans showed the air conditioning unit in a mechanical room. No plans approved by the City were submitted. Complainants submitted an e-mail from Steve Simpson, whom Mr. Zencirci identified as the architect. According to the e-mail, Mr. Simpson “was never notified of the change to the plans to Air Conditioning unit to the attic” and the plans included a mechanical room, where the air conditioner would be located. Mr. Bates testified that, when Respondent took over construction of the house, the framing and ductwork were in place. The framing and ductwork determined the location of the air conditioner. Respondent could not have changed the location of the air conditioner without reframing the house. Respondent submitted a Pre-Drywall Orientation, which Complainants had signed on September 5, 2007, approving the exterior air conditioner and utility locations. The Pre-Drywall Orientation provided that Complainants “understood that written and verbal changes have been completed, inconsistent plans and specifications have been interpreted and approved by both contractor and homeowner . . . .” Mr. Santorios testified that, before Complainants had signed the Pre- Drywall Orientation, they had inspected the house and Mr. Santorios had explained that the location of certain items had been predetermined by the work that the first contractor had done. Baseboards in master bathroom (Addendum Complaint #1) Inspector Deering testified that, at his prehearing inspection, he saw that Respondent had installed baseboards in the “wet” areas of the master bathroom, where there was tile. Although Respondent had not installed baseboards where there was carpet, in Inspector Deering’s opinion, tile baseboards were not required in carpeted areas. Mr. Zencirci testified that the master design book required tile base boards in all areas of the master bathroom. The master design book was not submitted. Mr. Bates testified that he did not think the plans required tile baseboards in the master bathroom. The complaint to the Registrar was the first notice to Respondent that Complainants wanted baseboards. Respondent had installed the baseboards where Inspector Deering thought they were necessary to comply with the CWO and to make the homeowners happy. The Registrar’s record reveals that Respondent’s license is current and in good standing. No discipline has ever before been taken against Respondent’s license. This is the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Complainants did not establish that Respondent failed to comply with the CWO, with the exception the sheen on the top of the northern most rear French door. Complainants have borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(7),[6] (23),[7] and (3)[8] in this very minor respect. The Administrative Law Judge recommends this finding based solely on Inspector Deering’s testimony. Inspector Deering was the only independent construction expert witness who testified. Respondent’s witnesses are not independent and photographs can be staged to minimize or exacerbate esthetic flaws. Respondent had notice of this deficiency through the CWO and Citation and Complaint, which identified the workmanship and the contracting statutes at issue. Complainants’ exclusion of Respondent’s representatives from Inspector Deering’s prehearing inspection did not violate Respondent’s right to due process.[9] But Complainants’ exclusion may presage a refusal to grant access for further corrective work, especially in light of the pending litigation between the parties. Complainants have not borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[10] (9),[11] or any other contracting statute. In light of the parties’ stipulation at the beginning of the hearing, however, Complainants’ failure should be without prejudice to their right to present evidence of financial damages in the pending court action. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, that the Registrar suspend Respondent Trilogy Custom Builders LLC’s License Nos. ROC225473, Class B- until it has provided proof that it has corrected in a professional and workmanlike manner the sheen at the top of the northern most rear French door at Complainants’ house. It is further recommended that the Registrar should not suspend Respondent’s license if, on or before the final date of the final order in this matter, it provides written proof of one of the following: 1) That it has corrected in a professional and workmanlike manner the sheen at the top of the northern most rear French door at Complainants’ house; or 2) That Complainants have refused to provide reasonable access for it to perform such corrective work. If Respondent provides such written proof, the Registrar should close Complainants Edmond Zencirci and Melissa Zencirci’s complaint in Case No. 09-3197. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, December 9, 2009.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] “Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.” Webb v. Arizona Board of Medical Examiners, 202 Ariz. 555, 558, ¶ 9, 48 P.3d 505, (App. 2002) (citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999)). Applicable statute requires the Registrar to include in its Notice of Hearing “[a] reference to the particular sections of the statutes and rules involved” and “[a] short and plain statement of the matters asserted.” See A.R.S. § 41-1092.05(D)(3) and (4). In this matter, Respondent received all the process that was due. [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

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

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