ALJDEC decisions subject to certification as final

09F-S0257-ROC · Registrar of Contractors · 2010-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2010 at 8:00 a.m. APPEARANCES: Complainant Joan Jones appeared on her own and her husband Roger Jones’ behalf; Respondent Total Restoration Inc. appeared through John Blaine Eller, its qualifying party and an officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On April 13, 1999, the Registrar of Contractors (“the Registrar”) issued License No. ROC142450, Class B-03 for residential general remodeling and repair contracting to Respondent Total Restoration Inc., a corporation. On June 23, 2009, the Registrar received a complaint from Complainant Roger Jones against Respondent’s license, which alleged that Respondent had performed deficiently several specifically enumerated items of workmanship in its repair of Complainants’ residence. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector Mike Nieves visited the jobsite and, on July 21, 2009, issued a Corrective Work Order (“CWO”) to Respondent, requiring that Respondent perform certain repairs within fifteen days, in relevant part as follows, with Complainants’ original complaint shown as the first sentence of each enumerated item: Contractor to correct the following by appropriate means: 3a. Replace cracked Saltillo in dining room: Cracked tiles need to be replaced. 4. Replace 3 interior doors as stated in quote did to insurance company: The doors need to be adjusted. 5. Replace privacy wall around spa. Needs to be properly repaired. 6. Replace twisted beams on deck: Beam needs to be square. 7. Replace or repair sagging French door: Doors need to be adjusted and properly weather stripped. 9. Railing on porch unsafe: Correct all wood checking.

No action is required on the following: 1. Replace sub-structure of deck to bring up to code: I could not determine the extent of the contractors responsibility as it is not specified in either contract. 2. Bring hot water heater up to code: Not specified in contract. 3b. Slip sheet below Saltillo tile: The complainant failed to show me if a slip sheet was needed. 8. Repair stucco over spa area and pop out: No specified in contract. 10. Roof leak causing interior ceiling damage: Roof leak repaired by the complainant, I could not determine if the leak was caused by the actions of the contractor.

On August 12, 2009, the Registrar received Complainants’ request for hearing. On October 27, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9- 108), (23), and (2). Respondent timely answered the complaint, denying any statutory violations.

Respondent affirmatively alleged that, after the CWO was issued, Complainants had denied Respondent reasonable access to perform repairs. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A hearing was held on March 4, 2010. Inspector Nieves testified. Complainant Mrs. Jones testified and submitted thirteen exhibits. Respondent’s qualifying party John Eller and vice president John Corlew testified. Respondent also submitted twelve exhibits. Additional Evidence Complainant’s residence consists of a trailer to which additions have been made, including a back porch. On July 3, 2008, Complainants’ home was damaged in a microburst. The back porch and certain parts of the interior were damaged by wind and water intrusion. Complainants submitted a claim to their homeowner’s insurer, Central Mutual Insurance Company. Central Insurance referred the claim to insurance adjuster Western Claims and Appraisers (“Western”). Western hired Respondent to submit estimates of the necessary repairs and the costs of the repairs. Respondent performed a jobsite inspection and submitted the following to Western: (1) An initial estimate; (2) A supplemental estimate after an architect and structural engineer had prepared plans for repairs; and (3) Three estimates for emergency repair services, pending permanent repairs, which are not at issue. Respondent submitted to Complainants copies of its estimates to Western. Western also issued estimates to Complainants, which apparently were based on but not identical Respondent’s estimates. Respondent’s contract was with Western, not Complainants. What Complainants referred to as their contract with Respondent was Western’s estimates. On July 22, 2008, Complainants authorized Respondent to begin repairs and authorized their homeowner’s insurer to pay Respondent, while admitting that they were personally also liable to pay Respondent for its repairs. On December 1, 2008, Complainants certified that they had “reviewed all the work performed & completed by [Respondent] . . . and certify that all work performed and materials supplied by [Respondent], in accordance with the signed Work Authorization have been competed to my satisfaction.” Neither Complainants nor Respondent agreed completely with the items on the CWO. When Respondent attempted to schedule repairs to comply with the CWO, Complainant Mr. Jones would not allow Respondent to perform any repairs if it did not agree to perform all the repairs that Complainants thought were necessary. Cracked Saltillo Tile in the Dining Room (CWO Item #3a) Respondent submitted a letter from the architect for the project, James R. Watson, dated June 19, 2009, which stated in relevant part: The tile was thinset installed over ¼” cementitious backerboard over double ½” 5-ply plywood sheathing. The substrate material was adequate for such floor tile installation.

Steven Hess and myself got below the dwelling floor structure to observe floor construction. The area of tile cracking was within the original mobile home area. Each side of the mobile home has enclosed dwelling additions. There were several areas of concern regarding the actual construction of these additions and installation of mobile home. The additions are supported by the mobile home structure which is beyond the capacity of mobile home to support additional weight. The mobile home main beam members appear to not have enough supports to transfer loading to ground. In the area of crack, the main beam supports were approximately 8’ apart. Usually these supports are around 3 to feet apart. In my practice I would never use the mobile home to support additional construction, the addition must be structurally independent of the mobile home. I do not believe that mobile home manufacturers allow for future add-on loads to the mobile home structure.

In my opinion the tile floor cracking is inevitable due to overstressed structural members, this creates a flexible floor structure. A floor structure supporting a rigid material such as tile requires a structure with minimum flexure. In order to prevent cracking of tile floor in this dwelling, additional under-support structure is necessary.

On June 21, 2009, structural engineer Steven Hess, PE, SE of Hess Structural Engineering, wrote a letter to Western, confirming Mr. Watson’s observations and concluding that “[i]t is our opinion the tile crack was not related to the storm damage or the repairs to the storm damage.” Mr. Hess suggested that Complainants engage a structural engineer to review the foundation support system under their residence. Complainant Mrs. Jones testified that, in 2007, Complainants had installed Saltillo tile in their residence. The tile had not cracked. Respondent’s qualifying party Mr. Hess disputed Mrs. Jones’ testimony. If the tiles had not cracked before and during the storm, the tiles would not have been part of Complainant’s insurance claim. Complainants submitted another letter from Mr. Watson dated October 14, 2009 to Western, in relevant part as follows: The floor structure on the north side of the original mobile home addition has an approximately ¾“ slope down from the north to south in a distance of eight feet (nominal). Also noted was a slight slope down from west to east of approximately 1/16” per foot within the living room area of the addition. An under- floor observation did not indicate the presence of standing water after the mentioned storms, I cannot be absolutely certain that water was or was not present after said storms since the event occurred over 15 months ago. If standing water was present below the supports of the dwelling, some settlement of supports is possible. My observations cannot support or verify with absolute certainty that the floor structure was “level” before the said storms.

Second the cracked floor tile seen near the middle of the mobile home structure is likely caused to flexure of the floor as addressed in my report of 6-19-09. Other tile and grout cracks since then to areas near the exterior perimeter of the living room are likely caused by non-structural reasons such as improper materials or methods used during installation.

Complainants’ dining room is in the middle of the original mobile home. Replacement vs. Adjustment of 3 Interior Doors (CWO Item #4) Respondent’s estimates to Western required it to detach, plane, refit, and reset the laundry room and master bathroom interior doors. What Complainants called Respondents “contract” was Western’s report. No evidence was offered that Respondent ever adopted or agreed to the items in Western’s report. Repair of Privacy Wall around Spa (CWO Item #5) Mrs. Jones testified that Respondent was supposed to have built the privacy fence out of redwood. Complainants submitted a photograph of the privacy fence taken at an angle, which showed large spaces between the fence slats. Inspector Nieves testified that there was not enough coverage between the gaps of the privacy fence. The type of wood was acceptable but not properly primed. Mr. Eller testified that, because the slats were offset, the angle of Complainants’ photograph exaggerated the space between the planks. All Respondent needed to correct was one slat that had been broken. Twisted Beam on Deck (CWO Item #6) Complainants submitted a photograph of the beam, which was not square to the tile grout that it had been set on. Mr. Eller testified that all lumber is green when it is purchased. The beam had not twisted any more after Respondent had installed it because the grout was not damaged. The framing had passed inspection. Replace vs. Repair of Sagging French Door (CWO Item #7) As noted above, Inspector Nieves’ CWO required Respondent to adjust and to properly weatherstrip the French door. Respondent agreed to perform this work. Correct Wood Checking on Porch Railing (CWO Item #9) Complainants submitted a photograph of the porch railing, which showed a large splinter or check. Respondent agreed that the check in the photograph should be repaired. Sub-structure of Deck (No Action Item #1) Complainants submitted a photograph of the piers on which the mobile home and additions were built, which were wood in direct contact with the soil. Mr. Eller testified that the wood piers were preexisting conditions. Respondent’s estimate to Western did not require it to replace or bring the preexisting piers into code compliance. Bring Hot Water Heater up to Code (No Action Item #2) Respondent’s estimate included detaching and resetting the 40-gallon water heater at Complainants’ house. Mr. Eller admitted that, through an oversight, the valve on the hot water heater had not been vented to the outside. Mr. Eller agreed to install the vent to bring the hot water heater into compliance with applicable code. According to the Registrar’s record, Respondent’s license is current and in good standing. It appears that this is the only complaint pending against the license. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[2] Complainants bear the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] Respondent has borne its burden of proof to establish that Complainants did not allow reasonable access for it to comply with the CWO. Complainants do not have the right to dictate to Respondent which repairs should be done or how the repairs should be performed. To be entitled to relief in this administrative forum, Complainants must allow Respondent to perform the repairs it feels are warranted; if Complainants disagree, their remedy is to request a compliance hearing. Because Complainants did not allow Respondent reasonable access to comply with the CWO, they have not borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(23)[7] in this matter. Respondent has also borne its burden to establish that an apparent workmanship deficiency, the cracked Saltillo tiles, was not do to anything that Respondent did but, instead, to inadequate structural support for the floor, for which Respondent is not responsible. Complainants have borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(2)[8] and (3)[9] in its failure to install a vent on the hot water heater that it detached and reset, as required by code (No Action Item #2). Complainants have also borne their burden of proof to establish that Respondent violated A.R.S. § 32-1154(A)(3) in its failure to adjust the laundry room and master bathroom interior doors (CWO Item #4), the finish and spacing of the slats, but not the wood used, on the privacy fence (CWO Item #5), the twisted beam on the deck (CWO Item #6), the weatherstripping on the French door (CWO Item #7), and the wood checking on the porch railing (CWO Item # 9). Complainants have not borne their burden to establish that Respondent violated any contracting law with respect to any other claimed workmanship deficiency. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar suspend Respondent Total Restoration Inc.’s License No. 142450, Class B-03 until Respondent provides proof in writing that it has corrected in a professional and workmanlike matter the following six items: (1) The vent on the hot water heater, (2) Adjustment of the laundry room and master bathroom interior doors, (3) The finish and spacing of the slats, but not the wood used, on the privacy fence, (4) The twisted beam on the deck, (5) The weatherstripping on the French door, and (6) The wood checking on the porch railing. It is further recommended that the Registrar close Complainants Roger D. Jones and Joan Jones’ complaints against Respondents’ license in Case No. S09-0257 if, on or before the effective date of the Registrar’s final order, Respondent provides written proof of either one of the following: 1) Respondent has corrected in a professional and workmanlike manner the six items set forth above, or 2) Complainants have refused to provide reasonable access for Respondent to correct the six items found to be deficient in this matter. 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, March 15, 2010. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge amended the caption to include Joan Jones as a party complainant to allow her to represent the marital community. Mrs. Jones is married to Complainant Roger Jones and is a co-owner of the property at issue.

[2] See A.R.S. § 32-1101 et seq. [3] 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). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [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 “[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.” [9] 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.”

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