ALJDEC decisions subject to certification as final

09F-P0261-ROC · Registrar of Contractors · 2010-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2010 APPEARANCES: Ron Stupi appeared personally. Pine Creek Log Homes, L.L.C. was represented by its authorized representative, Jon Mosley. 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. Pine Creek Homes, L.L.C. (“Respondent”) is the holder of License No. 189869, a Class KB-02 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 27, 2009, Ron Stupi (“Complainant”) filed a written Complaint with the Registrar alleging Respondent’s deficient staining of a log home located at 3330 W. Tobasa, Show Low, Arizona (“Lot 32”). The Registrar designated the Complaint as Case No. P09-0261. 3. The Registrar issued a Citation and Complaint in Case No. P09-0261 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. P09-0261 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. On June 20, 2005, Respondent entered into a written Contractor Agreement with Bryan Brewer, the then-owner of Lot 32, for Respondent to “furnish materials and perform work necessary to construct a Log Home Shell approx. 2348 sq ft per plans and specs at the proposed location on Lot # 32 Tollgate (Torreon) Show Low, Arizona.” 6. On August 26, 2006, the Registrar issued License No. 223916, a Class B- contracting license, to Dorado Development, L.L.C. Bryan Charles Brewer is the sole member and qualifying party for Dorado Development, L.L.C. 7. By Warranty Deed dated February 7, 2007, “Bryan C. Brewer, a married man as his sole and separate property,” conveyed Lot #32 with the log residence located upon it to Complainant and his wife. The Warranty Deed was filed with the Navajo County Recorder on March 2, 2007. 8. The Navajo County Assessor Office’s Assessor Information reflects that Lot 32 was sold to Desert Northeast Properties, L.L.C. on March 2, 2007. Complainant has an interest in Desert Northeast Properties, L.L.C. 9. On March 29, 2007, Bryan Brewer, as Dorado Development, L.L.C., filed a written Complaint with the Registrar alleging numerous workmanship deficiencies attributable to Respondent. Included in the Complaint items was an allegation that the log home’s exterior stain had failed. The Registrar designated that Complaint as Case No. P07-0250. 10. The Registrar’s assigned inspector, Tom Sandoval, performed a jobsite inspection in Case No. P07-0250. In his report dated March 29, 2007, Inspector Sandoval made the following determination as to the Complaint item that exterior stain had failed:

This was shown to be some type of black residue on the front rail. This is due to too much water draining on the railing. This needs to be corrected by the complainant because there are no gutters in place to stop the water at this point. The rest of the home looked okay. No action required.

11. Of the 30 Complaint items listed in Case No. P07-0250, Inspector Sandoval required no remedial action by Respondent. 12. Respondent applied a UV Guard interior or exterior acrylic wood finish to the log home, which is a product of Weatherall Company, Inc. 13. At the time of Respondent’s staining of the log home, Sean McCoy was employed by Respondent. Mr. McCoy is experienced in the log home industry and stain application. 14. Mr. McCoy credibly testified that he was present during the staining of the log home. Mr. McCoy stated that there were two applications of stain and one application of a clear coat performed by Respondent. 15. Respondent is found to have applied the stain to the log home per the manufacturer’s specifications. Complainant’s allegation that Respondent did not do so is not supported by the credible evidence of record. 16. In the present case, Inspector Sandoval also performed a jobsite inspection to view the stain on the subject log home. After completing the inspection, Inspector Sandoval issued a letter dated April 13, 2009, in which he determined that Case No. P09-0261 should be closed for the following reason: Per workmanship standards book stain on exterior of home needs to be corrected once in the first year and this is past one year. (Emphasis in the original)

17. The Registrar’s Workmanship Standards for Licensed Contractors, August 2004 edition, which was applicable during the time Respondent stained the log home, stated that a contractor’s responsibility for deteriorated stain was the following: “The contractor should correct or repair deteriorating finish one time during the first year of occupancy.” The current Workmanship Standards for Licensed Contractors, June 2009, sets forth a similar standard. 18. The evidence of record supports Inspector Sandoval’s opinion that Respondent is not responsible for undertaking any remedial action to the stained log home. 19. Complainant failed to establish that Respondent committed an act or omission resulting in substantial injury to him. 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. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proof in this matter. The above Findings of Fact support this conclusion. RECOMMENDED ORDER The Citation and Complaint in Case No. P09-0261 shall be dismissed on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, February 17, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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