ALJDEC decisions subject to certification as final

2011A-2475-ROC · Registrar of Contractors · 2012-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2012, at 8:15 a.m. APPEARANCES: Complainant Virlynn Tinnell appeared on behalf of herself and her husband, Complainant Robert Tinnell; Respondent Fripps Construction Company, Inc. appeared through George Ripps, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.152987-R for residential general contracting to Fripps Construction Company, Inc. (“Respondent”). George Rodney Ripps is Respondent’s qualifying party and officer. On or about June 8, 2007, Robert and Virlynn Tinnell (“Complainants”) closed escrow on a house that Respondent constructed at 2228 Rincon Avenue in Kingman, Arizona. On or about May 13, 2009, Complainants filed a complaint to the Registrar against Respondent alleging seven enumerated workmanship deficiencies, as follows: #1. Water leak in bathroom window. . . .

#2. Gaps and/or cracks in mortar joints of perimeter block wall.

#3. Water leak under threshold of side garage door.

#4. Water leak damage to paint on ceiling and window in master bath.

#5. Cracked, peeling window caulking in bathroom and bedrooms.

#6. Sub standard [sic] insulation level in South attic area.

#7. Retaining wall on North side of property adjacent to retaining basin. Per verbal direction of City of Kingman personnel. . . .

The Registrar designated Complainants’ May 13, 2009 complaint as Case No. 2009-3581578. The Registrar assigned its inspector in the Kingman office, William A. Redman, to investigate the complaint. On or about June 10, 2009, Inspector Redman performed a jobsite inspection and issued a Corrective Work Order (“CWO”) in Case No. 2009-3581578. The Registrar closed Case No. 2009-3581578.[1] On or about April 6, 2011, Complainants requested that the Registrar reopen the complaint in Case No. 2009-3581578 because all seven items of the complaint required correction.[2] On April 29, 2011, the Registrar received a second complaint from Complainants against Respondent that alleged the same seven enumerated workmanship deficiencies. The Registrar designated Complainants’ second complaint as Case No. 2011-2475. On May 16, 2011, Inspector Redman issued a CWO to Respondent in Case No. 2011-2475 that required it to correct within fifteen calendar days the leaking bathroom window, in relevant part as follows: 1. The respondent shall determine the cause of the glass block window leaking in the master bathroom and repair same by appropriate means. Respondent shall repair interior damage on drywall around the leaking window with all repairs to match existing texture and paint color as close as possible.

2. All the remaining items are beyond our two years of jurisdiction or are home owner’s responsibility. The masonry fence appears to have failed after the May 2009 complaint[.] These items [do] not require any further action by Fripps Const. (Items 2, 3, 5, 6 and 7)

On October 17, 2011, Inspector Redman amended the May 16, 2011 CWO in Case No. 2011-2475 to reflect that Respondent’s License No. B.152987-R was voluntary cancelled on November 4, 2010, but that the Registrar had issued License No. KB-2.263905-D to Fripps Mohave Construction, L.L.C., on which Mr. Ripps was listed as qualifying party and member, and that he could perform work under that license. Complainants requested a hearing in Case No. 2011-2475. 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 A.R.S. § 32- 1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint in Case No. 2011-2475, denying any statutory violations. The Registrar referred Case No. 2011-2475 to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On March 23, 2012, a videoconference hearing was held in Case No. 2011- 2475 from the Registrar’s office in Kingman. Complainants both testified and submitted 33 exhibits. Mr. Ripps testified and submitted one exhibit on Respondent’s behalf. Because Inspector Redman had retired, the Registrar’s inspector, Cliff Corlett, performed a prehearing inspection in Case No. 2011-2475 on March 15, 2012, and testified at the hearing. Additional Evidence Inspector Corlett testified that he obtained Inspector Redman’s CWO in Case No. 2009-3581578. Inspector Corlett testified that according to Inspector Redman’s notes of his May 16, 2011 jobsite inspection in Case No. 2011-2475, before Inspector Redman performed his jobsite inspection in Case No. 2009-3581578, Respondent had attempted to repair complaint items #1, #2, #3, #4, and #5.[3] Both parties testified that Respondent or its subcontractors performed repairs to the bathroom window and to the perimeter wall, complaint items #1 and #2, to comply with the CWO in Case No. 2009-3581578 in July or August 2009. Mrs. Tinnell testified that during the summer of 2009, Respondent also worked on the leak under the threshold door, the paint on the ceiling and window in the master bath, and the window caulking in the bathroom and bedrooms, complaint items #3, #4, and #5. Mr. Ripp denied that after May 2009 Respondent performed any work on the leak under the threshold door, the paint on the ceiling and window in the master bath, or the window caulking in the bathroom and bedrooms, complaint items #3, #4, and #5. Inspector Corlett testified that he agreed with Inspector Redman’s May 16, 2011 CWO in Case No. 2011-2475 that the leak under the threshold door, the window caulking in the bathroom and bedrooms, and the retaining wall, complaint items #3, #5, #6, and #7 were either filed beyond the two-year jurisdictional limit or were Complainants’ responsibility. The Seven Complaint Items Water Leak in Bathroom Window (Complaint Item #1) Respondent or its subcontractor repaired the window in Complainants’ bathroom in August 2011, by removing and replacing the glass block, repairing drywall, and repainting the drywall and trim. Inspector Corlett testified that at the prehearing jobsite inspection, he saw that the window was corrected in a professional and workmanlike manner and no longer leaked. Mrs. Tinnell testified that although the window in the bathroom had not leaked since Respondent last repaired it, because Kingman is in a drought, the window was not been exposed to a significant amount of rain. Gaps and/or Cracks in Mortar Joints of Perimeter Block Wall (Complaint Item #2) Inspector Corlett testified that he agreed with Inspector Redman’s opinion that Respondent was not responsible for cracks in the perimeter wall because, like the bathroom window, Respondent had repaired the wall within the two years before Complainants filed their complaint in Case No. 2011-2475 on April 29, 2011. Complainants’ April 6, 2011 request to reopen their complaint in Case No. 2009-3581578 alleged that “[t]wo years ago when this complaint was first filed, the contractor sent someone to fill in some of the cracks, but only the large ones were done at the time so the ones that were less obvious have continued to worsen.” Mrs. Tinnell testified that the cracks in the perimeter wall were occurring in the same areas that Respondent had previously repaired. Mrs. Tinnell also testified that the perimeter wall was settling in the corner because Respondent had not compacted the fill dirt that was brought in to level the lot. As a result of the settlement, additional cracks were developing in the perimeter wall. Inspector Redman’s notes of his May 16, 2011 jobsite inspection in Case No. 2011-2475 stated that although Respondent’s repairs to the perimeter wall were still under warranty, the cracks that he saw at his second jobsite inspection were not covered by the warranty because “they are not in the same area and the wall now has a step crack of ½” or more from top to bottom on the left rear corner of the house/lot.”[4] Inspector Corlett testified that in addition, the caulk that Respondent used to repair cracks in the wall did not adequately match the grout in the wall. Mr. Ripps testified that Inspector Redman approved the color of the caulk that Respondent used to repair the perimeter wall. Mr. Ripps testified that Respondent’s repairs were clearly visible, and that the cracks that he saw at Inspector Redman’s May 16, 2011 jobsite inspection were in different areas than the areas that Respondent had repaired in July or August 2009. On April 7, 2011, the day after Complainants requested that the Registrar reopen their complaint in Case No. 2009-3581578, they obtained a permit to construct a swimming pool. Mr. Ripps testified that he lives next door to Complainants and that in April 2011, the construction crew used jackhammers to excavate the hole for the swimming pool. Mr. Ripps pointed out that the subdivision where Complainants’ homes are located is named Granite Bluffs. Mr. Ripps testified that the jack-hammering for the pool excavation caused or exacerbated the cracks in the wall. Complainants testified that the cracks were present for quite some time. Complainants testified that they had been waiting since they purchased the house in June 2007 to install a swimming pool. Water Leak under Threshold of Side Garage Door (Complaint Item #3) Inspector Corlett testified that he performed a water test on the threshold of the side garage door and that he did not see any evidence of a leak under the threshold. Inspector Corlett testified that water entered the garage from above the door, but that the Registrar only requires contractors to provide a one- year warranty for weather stripping, after which time the homeowner is responsible for maintenance. Mrs. Tinnell testified that the side garage door continued to leak under the threshold whenever rain blew from the south. Water Leak Damage to Paint on Ceiling and Window in Master Bath (Complaint Item #4) Inspector Corlett testified that the paint on the ceiling of the master bathroom showed a very light discoloration above the toilet. Inspector Corlett testified that even if the complaint were timely, the paint in the bathroom did not deviate from the Registrar’s workmanship standards. Mrs. Tinnell testified water continued to stain the repaired area. / / / / Cracked, Peeling Window Caulking in Bathrooms and Bedrooms (Complaint Item #5) Inspector Corlett testified that the Registrar’s workmanship standards provide that after one year, window caulking is a homeowner’s responsibility to maintain. Substandard Insulation in the South Attic Area (Complaint Item #6) Inspector Corlett testified that according to the Registrar’s records in Case No. 2009-3581578, Respondent’s insulation subcontractor informed Inspector Redman that it had installed additional insulation in the south attic area. Inspector Corlett testified that at his prehearing jobsite inspection, Complainants stated that the insulation had been corrected. Retaining Wall on North Side of Property Adjacent to Retaining Basis (Complaint Item #7) Inspector Corlett testified that Inspector Redman’s June 10, 2009 CWO in Case No. 2009-3581578 stated that according to verbal direction from the City of Kingman building inspector, the developer of the subdivision, not Respondent, was responsible for any deficiencies in the retaining wall on the north side of Complainants’ property. Mr. Ripps testified that the City of Kingman inspected the retaining wall three times and that the Certificate of Occupancy would not have been issued if the retaining wall had not passed inspection. CONCLUSIONS OF LAW A.R.S. § 32-1155(A) allows the Registrar to investigate a written complaint concerning any act by a licensed contractor that was committed within two years prior to the date that the complaint was filed. The two-year period commences when a homeowner closes escrow on the purchase, moves into the house, or the contractor last works on the house, whichever is later.[5] The timely filing of a complaint is a jurisdictional prerequisite.[6] Complainants did not establish that within the two years prior to April 29, 2011, when they filed the complaint at issue, Respondent performed work on the threshold of the side garage door, the paint on the ceiling and window in the master bath, the insulation in the south attic area, or the retaining wall on the north side of the property (respectively, complaint item #3, #4, #6, and #7). Therefore, the Registrar lacks jurisdiction to determine the merits of these complaints. The Registrar only requires contractors to correct caulking once during the first year of occupancy. Because Complainants filed their complaints in Case Nos. 2009-3581578 and 2011-2475 more than one year after they closed escrow and occupied the house, Respondent is not responsible for the allegedly cracked and peeling caulking in the bathroom and bedrooms (complaint item #5). A.R.S. § 32-1155(A) requires contractors to provide a two-year warranty of their initial work and any repairs that they subsequently perform. If a contractor repairs a portion of a structure, the repairs do not renew the statutory warranty on the entire structure, but only on the repair. Inspector Corlett was not present at Inspector Redman’s June 10, 2009 jobsite inspection in Case No. 2009-3581578. Complainants’ April 6, 2011 request to reopen Case No. 2009-3581578 states that the cracks in the wall that worsened were not the cracks that Respondent repaired. Inspector Redman’s notes of his May 16, 2011 jobsite inspection in Case No. 2011- 2475, and Mr. Ripps’ testimony confirmed, that the cracks that Complainants complained about in their April 29, 2011 complaint were not the ones that were present on June 10, 2009. Although Complainants established that cracks have appeared in the perimeter block wall (complaint item #2), they did not establish that the cracks were in the same areas that Respondent repaired in July or August 2009. Therefore, the Registrar lacks jurisdiction to determine the merits of Complainants’ complaint for new cracks that have appeared in the retaining wall. With respect to the remaining complaint item, Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] Complainants did not establish that Respondent’s repairs of the window in the bathroom (complaint item #1) deviated from the Registrar’s workmanship standards. Therefore, Complainants did not establish that Respondent violated the May 16, 2011 CWO in Case No. 2011-2475 in violation of A.R.S. § 32-1154(A)(23).[9] Because construction is not a perfect art, in most cases, the Registrar affords contractors at least one opportunity to correct their work before it disciplines their licenses. Because Respondent repaired the window in the bathroom in a professional and workmanlike manner, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108.[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar dismiss Complainants Robert and Virlynn Tinnell’s complaint in Case No. 2011-2475 against Respondent Fripps Construction Company, Inc.’s License No. B.152987-R. 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, April 12, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] Complainants testified that they requested a hearing in Case No. 2009- 3581578. However, Complainants did not submit any documentation or other evidence to support their testimony. [2] The record in this matter does not include the Registrar’s response to Complainants’ request to reopen Case No. 2009-3581578. [3] The June 10, 2009 CWO in Case No. 2009-3581578 is not included in the record of this matter. Based on Inspector Corlett’s testimony and other evidence at hearing, the Administrative Law Judge infers that the June 10, 2009 CWO only required Respondent to correct the leaking bathroom window and the perimeter block wall, complaint items #1 and #2. [4] Neither party submitted Inspector Redman’s notes. The notes are part of the Registrar’s public record in this matter and could have been obtained by either party. [5] See Attorney General Opinion I79-088 (March 28, 1979) (citing Lyon v. Great American Ins. Co., 4 Ariz. App. 596, 599, 422 P.2d 724, 727 (App. 1967)). [6] See Harrelson v. Industrial Commission of Arizona, 144 Ariz. 369, 371, 697 P.2d 1119, 1121 (App. 1985) (untimely filed administrative claim deprived agency of jurisdiction to consider merits of claim); Attorney General Opinion I79-088 (Registrar must act on and issue citation in complaints that meet “jurisdictional requirements” of A.R.S. § 32-1155(A)). [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] 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.” [10] 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.”

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