ALJDEC decisions subject to certification as final

2010A-26161490-ROC · Registrar of Contractors · 2011-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 25, 2011, at 8:00 a.m. APPEARANCES: Complainant Larry Karr appeared on his own behalf; Respondent Pebble Creek Construction Company appeared through Pamela Hesse Gulsvig, Esq., in-house counsel for Robson Communities, Respondent’s corporate parent. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In October 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC190149, a Class KB-1 dual building contracting license, to Pebble Creek Construction Company (“Respondent”). On February 2, 2010, the Registrar received a complaint from Larry Karr (“Complainant”) against Respondent that alleged that “shower doors should close evenly both directions and even margin top & bottom” in Complainant’s residence that Respondent constructed at 16181 West Cambridge Avenue in Goodyear, Arizona. The complaint was assigned to the Registrar’s inspector, Rick Oelke, who performed a jobsite inspection on March 1, 2010. On March 3, 2010, Inspector Oelke, on behalf of the Registrar, issued a Corrective Work Order (“CWO”), directing Respondent to correct the following deficiencies within fifteen days: Uneven margins at the side rails of the hall bath and casita bath shower doors had been verified at the jobsite inspection. The framed walls adjacent to the sides of the shower are plumb within allowable standards. It is this Inspectors [sic] opinion that the shower doors should close evenly in both directions, and maintain an even margin along the edges of the glass. Contractor should correct the uneven condition.

Complainant subsequently requested a hearing on Respondent’s repairs of the shower doors in the casita and hall bathrooms. On October 8, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and (23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that because Complainant had closed escrow on the house 3½ years before he filed his complaint to the Registrar, his complaint was time-barred. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 25, 2011. Inspector Oelke testified. Complainant submitted two exhibits and testified on his own behalf. Respondent submitted one exhibit and presented the testimony of two witnesses: (1) Glenn Balliet, the qualifying party and an officer of Diamond Glass and Mirror, Inc., License No. ROC092678, Class B (“Diamond Glass”), Respondent’s subcontractor who repaired the shower doors; and (2) Robert Capraro, Respondent’s project manager who oversaw Respondent’s various warranty work on Complainant’s residence. Hearing Evidence In August 2006, Complainant closed escrow on and moved into his residence. Mr. Capraro testified that Respondent issues written work orders for warranty work that it performs after homeowners purchase and move into their residences. Mr. Capraro testified that he reviewed Respondent’s paperwork for Complainant’s residence and discovered that work was last done on the shower doors in the casita bathroom in January 2008, and that Respondent had never performed warranty work on the shower doors in hall bathroom before Complainant filed his complaint to the Registrar. On December 9, 2008, Complainant requested that the Registrar perform an inspection of the shower doors under the Building Confidence Program and requested that Respondent not be allowed to be present for the inspection. Inspector Oelke testified that he asked Complainant at the Building Confidence Program inspection when Respondent had last worked on the shower doors and Complainant told him that Respondent had repaired the doors recently. Inspector Oelke testified that after Complainant filed the formal complaint to the Registrar, Mr. Capraro attended the formal jobsite inspection on Respondent’s behalf. Inspector Oelke testified that Mr. Capraro did not dispute Complainant’s statements that Respondent had recently worked on the shower doors. Inspector Oelke testified that because the complaint appeared to be timely, he performed the jobsite inspection and issued the CWO. Mr. Balliet testified that the bypass shower doors that were installed in Complainant’s hall and casita bathrooms were designed to be closed with the inner door closest to the shower head. Mr. Balliet testified that the frame on either side of the shower doors had cupped receivers with an arm that was designed to keep the glass from striking the metal frame. Mr. Balliet testified that if the bypass shower doors were closed opposite the way that the manufacturer intended, with the outer door nearest the shower head, the arm on the cupped receiver would prevent the doors from fully closing. Inspector Oelke, Complainant, Mr. Balliet, and Mr. Capraro all testified that the Complainant’s complaint was that the bypass shower doors in the casita and hall bathrooms did not fully close if the position of the doors was reversed from the way that the manufacturer intended the doors to be closed. All of the witnesses agreed that if the doors were closed the way that the manufacturer intended them to be closed, the doors closed snugly to the frame with a uniform reveal. Inspector Oelke testified that in his opinion, workmanship standards required the bypass shower doors to close properly in both directions. Inspector Oelke testified that he performed a prehearing inspection on April 22, 2011. Inspector Oelke testified that Respondent had repaired the shower door in the casita bathroom to close in both directions with a gap at the outside edges of the shower doors that was less than ¼”, as applicable standards required. Inspector Oelke testified that Respondent had repaired the shower doors in the hall bathroom to close in both directions and when the doors were closed opposite the way that the manufacturer intended, the gap at the outside edges of the shower doors was exactly ¼”. Inspector Oelke testified that although he personally would not like the appearance of the shower doors in the hall bathroom when they were closed opposite the way that the manufacturer intended, even in that position, the shower doors were within workmanship standards, albeit barely. Complainant submitted a photograph that he testified showed the shower doors in the hall bathroom had a gap of ¾” when the doors were closed in the reverse position. 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.R.S. § 32-1155(A) requires a homeowner to file a complaint within two years of the close of escrow, when the homeowner occupies the residence, or when the contractor last worked on a specific item of construction, whichever is later.[5] Respondent last worked on the shower doors in the casita bathroom in January 2008, and Respondent did not work on the shower doors in the hall bathroom after Complainant closed escrow in August 2006. For both sets of doors at issue, it appears that the operative event occurred more than two years before Complainant filed his complaint to the Registrar in February 2010. Respondent could have asserted that Complainant’s complaint was untimely under A.R.S. § 32-1155(A) before it worked on the doors. Because the time limit for filing a complaint under A.R.S. § 32-1155(A) is an affirmative defense that may be waived,[6] by performing work on the shower doors to comply with the CWO, Respondent waived the defense that Complainant’s complaint was time-barred. The Registrar’s standards do not require that contractors achieve perfection in their contracting work. Complainant failed to establish at the hearing that Respondent’s repairs to the shower doors in the casita and hall bathrooms violated the Registrar’s workmanship standards. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108,[7] or A.R.S. § 32-1154(A)(23).[8] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 2010-26161490 against Respondent Pebble Creek Construction Company’s License No. ROC190149, Class KB-1. 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, May 12, 2011. /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] See Attorney General Op. I79-119 (1979). [6] See Magma Copper Co. v. Indus. Comm’n of Arizona, 139 Ariz. 38, 45-46, 676 P.2d 1096, 1103-04 (1984). [7] A.R.S. § 32-1154(A)(3) 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.” A.A.C. R4-9-108 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.” [8] A.R.S. § 32-1154(A)(23) 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.”

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