ALJDEC decisions subject to certification as final

2011A-4508-ROC · Registrar of Contractors · 2011-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2011, at 8:00 a.m. APPEARANCES: Complainant John Lay appeared on his own behalf; Blooming Desert Construction, Inc. appeared through Brian Wolynia, General Manager/Designer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. ROC197809, Class B for residential general contracting, and ROC201800 for dual landscaping and irrigation systems to Blooming Desert Construction, Inc. (“Blooming Desert”). In May or June of 2011, the Registrar received two complaints against Blooming Desert’s License Nos. ROC197809 and ROC201800 from John Lay (“Complainant”) regarding Blooming Desert’s performance of landscaping and installation of pavers at the back porch of Complainant’s residence at 4880 West Erie Street in Chandler, Arizona. The Registrar designated Complainant’s complaint against License No. ROC197809 as Case No. 2011- 3231, and Complainant’s complaint against License No. ROC201800 as Case No. 2011-4508. Complainant alleged the same workmanship deficiencies in the complaints in Case Nos. 2011-3231 and 2011-4508, in relevant part as follows: #1. Contract calls for weep screed to be installed next to house, this was not done.[1] #2. Pavers were installed above the height allowed by code. #3. Unless the complete job is lowered, the lawn would pitch drastically toward the house. . . . .

(Footnote added.) The Registrar assigned Case Nos. 2011-3231 and 2011-4508 to its inspector, Ted Gerold, for investigation. On July 1, 2011, after Inspector Gerold performed a jobsite inspection, he issued a Corrective Work Order (“CWO”) that required Blooming Desert within fifteen days to perform certain corrective work, in relevant part as follows: This contractor is to correct the following by appropriate means:

1) Install weep screed per contract, or as agreed upon by both parties. . . . .

Note: No action is required by the contractor for the following:

1) The height of the pavers [.] 2) The rear lawn drainage [.] . . . .

Complainant requested an administrative hearing in Case Nos. 2011-3231 and 2011-4508. The Registrar issued Citations and Complaints against Blooming Desert, charging violations of A.R.S. § 32-1154(A)(2), (3), namely A.A.C. R4-9-108, and (23). Blooming Desert filed a timely written answer to the Citations and Complaints, denying any statutory violations and affirmatively alleging that Complainant refused to allow Blooming Desert reasonable access to comply with the CWO unless it agreed to perform additional work that was beyond the scope of the parties’ contract. The Registrar subsequently referred Case Nos. 2011-4508 and 2011-3231 to the Office of Administrative Hearings (“the OAH”), an independent state agency, for a consolidated hearing.[2] A hearing was held on November 4, 2011. Inspector Gerold testified. Complainant submitted six exhibits, including some that consisted of numerous photographs, and testified on his own behalf. Blooming Desert submitted its written answer to the Citations and Complaints, with copies of the sixteen documents that it had attached thereto, and presented the testimony of Brian Wolynia, its designer on the project at Complainant’s house. Hearing Evidence The Parties’ Contract Complainant’s residence was built some time ago, with a concrete slab as the back patio. Another contractor, not Blooming Desert, initially constructed the residence and back patio. The exterior of Complainant’s house is stucco that was applied so that the edge of the stucco protrudes approximately ¼” or ⅜” from the concrete stem wall. A weep screed, consisting of a metal flange with perforations, was installed at an angle at the bottom of the stucco to allow moisture to drain and the stucco to dry after it was applied. Approximately 1½ inches of the concrete stem wall was visible between the weep screed and concrete patio slab. After Complainant purchased the residence, he constructed cinder block posts on the patio without obtaining a permit or constructing footers under the posts to provide additional support, contrary to code requirements. In late 2010, Complainant and Mr. Wolynia, on behalf of Blooming Desert, began discussing certain improvements to Complainant’s back yard, including installation of pavers on and beyond the back patio to extend it. A significant consideration was avoiding the costs of removing the existing patio slab and pouring concrete footers for the posts to comply with code requirements. Complainant did not include among the job requirements that he be able to see the stem wall adjacent to the back patio. Complainant testified that he wanted standard pavers, not thinner 1” thick pavers that were available, because he felt thinner pavers would be susceptible to cracking. Mr. Wolynia testified that when he first met with Complainant, “everyone knew that 2⅜” thick pavers would not fit on the back porch slab under the weep screed.” Therefore, the preliminary conceptual plan that Mr. Wolynia prepared showed a gap between the stem wall and the pavers under the weep screed and a “weep screed barrier” between the pavers and stem wall to prevent large debris from settling in the gap. Complainant signed the conceptual plan to signify his approval. Inspector Gerold testified that the “weep screed barrier” was akin to a deco drain that allowed water to drain away from the residence. On or about December 15, 2015, Mr. Wolynia met Complainant in his back yard, presented a plan for his approval, walked the jobsite to explain the plan, and answered Complainant’s questions. The plan showed 42 linear feet of weep screed barrier along the house. Complainant wrote his initials to show his acceptance of the plan detail to “maintain weep screed clearance. Cut paver to fit at entry only.”[3] Complainant also wrote his initials to show his agreement to the following notation: [Complainant] has informed [Blooming Desert] that existing yard does not drain from back to front. [Complainant] agreed that [Blooming Desert] will install landscaping and not change the grade of the lot. [Blooming Desert] is not contracted to adjust or fix existing drainage. [Blooming Desert] can not and will not be held responsible for any drainage issues.

Blooming Desert’s Installation of the Pavers and Attempts to Satisfy Complainant’s Complaints After Complainant accepted and agreed to the plan, during the second or third week of December 2010, Blooming Desert’s crew installed the pavers according to the plan, with an approximately 2” wide weep screed barrier between the stem wall and pavers. Subsequently, Complainant asked Blooming Desert to remove the weep screed barrier because he did not like its appearance. On or about January 11, 2011, Blooming Desert removed the weep screed barrier. After Blooming Desert removed the weep screed barrier, Complainant informed Blooming Desert had he did not like the width of the gap between the pavers and the stem wall. Blooming Desert installed 1” wide “slivers” of pavers against the paver side to reduce the gap. Inspector Gerold testified that although deco drains generally will keep out large debris, homeowners periodically must use a hose to flush fine debris from deco drains, and keeping the gap or weep screed barrier free of debris was a homeowner maintenance issue that was Complainant’s responsibility. Complainant expressed dissatisfaction with his ability to keep debris out of the gap between the paver slivers and the stem wall. On or about January 27, 2011, Blooming Desert as a courtesy cleaned out the gap. On or about February 24, 2011, Complainant requested that Blooming Desert remove the paver slivers and reinstall the weep screed barrier in a way that allowed it to be easily removed. Mr. Wolynia testified that Blooming Desert declined Complainant’ request because to be able to easily remove the weep screed barrier from under the weep screed without damaging the pavers, the barrier would have to be installed at an angle and would have a gap. Mr. Wolynia testified that he did not think that Blooming Desert’s alterations would be aesthetically satisfactory to Complainant. After Blooming Desert declined Complainant’s request to remove the paver slivers and reinstall the weep screed barrier so that it could be easily removed, Complainant chipped out the paver slivers that Blooming Desert had installed at his request. On or about April 12, 2011, Complainant first called Blooming Desert’s attention to its potential violation of the 2006 International Residential Code Section R703.6.2.1 (“the IRC provision”). The IRC provision requires that “[t]he weep screed shall be placed a minimum of 4 inches (102 mm) above the earth or 2 inches (51 mm) above paved areas and shall be of a type that will allow trapped water to drain to the exterior of the building.” Blooming Desert’s warranty manager, Marty Devolld, met Complainant at his house. At that meeting, Complainant requested that Blooming Desert remove most of the pavers so that he could remove the patio slab and pour footers for the cinder block posts, and that Blooming Desert then reinstall the pavers at the “proper height” in relation to the weep screed. Complainant confirmed that the existing patio slab violated the IRC provision and that Mr. Wolynia’s plans had noted the violation and had offered a way around it with the gap and weep screed barrier. Mr. Devolld informed Complainant that lowering the level of the entire patio would create drainage problems because the patio would be lower than the adjacent yard. Mr. Wolynia testified that Blooming Desert will not undertake to alter drainage because it does not have an engineering license. Mr. Wolynia met with Complainant on April 18, 2011. On April 20, 2011, Mr. Wolynia, on Blooming Desert’s behalf, submitted three alternate proposals to Complainant to resolve his complaint: (1) Blooming Desert would remove the sod and pavers that it had installed and credit Complainant the costs of materials and installation, unless Complainant wanted it to leave the pavers onsite for installation by another, in which case Blooming Desert would leave the pavers and credit only the cost of the pavers’ installation; (2) Blooming Desert would remove the sod and pavers and credit Complainant the cost of materials and installation, Complainant would remove the patio slab, pour footers for the cinder block posts, and pay a civil engineer to certify the grade, at which time Blooming Desert would re-install the pavers at cost at a lower elevation, or Complainant could hire another contractor to complete the job; or (3) Blooming Desert would remove the pavers from the patio slab and adjacent areas, reinstall the pavers only on the adjacent areas at the same elevation as the patio slab, and credit Complainant with the costs of material and installation of the pavers that were removed and not reinstalled.[4] On May 25, 2011, Complainant, Mr. Wolynia, and Blooming Desert’s vice president of construction, Kent McCracken, discussed the final plan and Complainant agreed to the second option. Mr. Wolynia testified that after the parties agreed to a resolution, he told Complainant that he would have Blooming Desert’s attorney draft an agreement for Complainant’s signature. On or about May 30, 2011, Complainant sent Mr. Wolynia an e-mail, stating that he had spoken to an inspector from the Registrar, who told him that “[t]he only need for a contract such as you are proposing is for me to allow you to perform work that is not [compliant with] applicable building codes,” that he could not allow Blooming Desert to violate applicable code, and that he would therefore look to the Registrar to resolve the parties’ dispute. Testimony on the IRC Provision’s Requirements Inspector Gerold testified that the purpose of the IRC provision was to allow moisture to drain from newly applied stucco because sometimes pavers were installed immediately after a house was constructed. Inspector Gerold testified that after a year, the stucco would be cured and any moisture in the stucco was from a different source than the initial application. Inspector Gerold and Mr. Wolynia testified that the IRC provision referred to the vertical distance between the weep screed and the horizontal surface underneath it. Since the pavers were not directly underneath the weep screed, the pavers’ height relative to the weep screed did not violate the IRC provision. Inspector Gerold testified that he spoke to a building inspector for the City of Chandler, who confirmed that the City interpreted the IRC provision the same way as Inspector Gerold and Mr. Wolynia. Complainant testified that a City of Chandler building inspector had told him that the patio did not comply with the IRC provision and that he could not sell his residence unless it was code compliant. Neither party requested a subpoena for a City of Chandler building inspector, and no City of Chandler building inspector testified at the hearing. Inspector Gerold testified that builders used to build houses with stucco all the way to the ground, and that it was not a code requirement to be able to see the stem wall. Inspector Gerold testified that he had confirmed with the City of Chandler that applicable code did not require that the stem wall be visible. Complainant testified that Pest Control Solutions had told him that it would honor a termite warranty on Complainant’s residence, but that it would write up the contract as “faulty grade conditions” because it could not see termite tubes at the stem wall at the back patio. Complainant testified that as a result, termite damage would be more extensive before Pest Control Solutions could diagnose an infestation. Inspector Gerold acknowledged that a visible stem wall would make it easier to diagnose termite activity. However, Inspector Gerold testified that the Registrar’s workmanship standards do not require that the stem wall be visible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] Complainant bears the burden of proof to establish Blooming Desert’s statutory violations by a preponderance of the evidence.[6] Blooming Desert bears the burden to establish affirmative defenses by the same evidentiary standard.[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] 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.”[9] Complainant did not establish that Blooming Desert’s initial installation of and alterations to the pavers on his back patio violated the IRC provision, any other code, or the project specifications. Therefore, Complainant did not establish that Blooming Desert violated A.R.S. § 32- 1154(A)(2).[10] Complainant also did not establish that Blooming Desert’s initial installation of and alterations to the pavers violated the Registrar’s workmanship standards. Therefore, Complainant did not establish that Blooming Desert violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[11] The CWO required Blooming Desert to re-install the weep screed barrier after it had initially installed the barrier according to plan, all applicable code requirements, and workmanship standards, and Complainant had requested that Blooming Desert remove the barrier. Blooming Desert made extraordinary efforts to resolve Complainant’s dissatisfaction with the weep screed barrier, but Complainant will not be satisfied unless Blooming Desert removes its work and completes a vastly expanded scope of work, at no additional cost to Complainant. Therefore, Complainant did not establish that Blooming Desert violated A.R.S. § 32-1154(A)(23).[12] RECOMMENDED ORDER Case No. 2011-4508 Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant John Lay’s complaint in Case No. 2011-4508 against Blooming Desert Construction, Inc.’s License No. K-21.201800-D. Case No. 2011-3231 Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant John Lay’s complaint in Case No. 2011-3231 against Blooming Desert Construction, Inc.’s License No. B.197809-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, November 23, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] As noted infra, the contract called for Blooming Desert to install a weep screed barrier, not weep screed. The parties did not allege at hearing that the contract required Blooming Desert to install weep screed. [2] Before the hearing, the Registrar’s staff informed the Administrative Law Judge that Case No. 2011-3231 would be forwarded for a consolidated hearing. Through an oversight, the electronic file for Case No. 2011-3231 was not forwarded to the OAH until after the hearing. As noted supra, however, the two complaints should have been consolidated because they involved the same parties, the same construction project, and the same complaint items. See A.A.C. R2-19-109(A). Blooming Desert’s representative, Brian Wolynia, stated on the record at the hearing that he understood that the Registrar would refer Case No. 2011-3231 to the OAH for a recommended resolution with Case No. 2011-4508 based on the evidence that the parties presented at the hearing. The Administrative Law Judge stated that she would make a recommendation in both cases. Complainant did not object to the prospective consolidation. [3] Because the back door from the residence to the patio did not have stucco or weep screed on it, the pavers could abut the stem wall at this location. [4] Mr. Wolynia testified that the April 20, 2011 proposals were not any admission of wrongdoing by Blooming Desert, but only an attempt to avoid a time-consuming complaint to the Registrar, and that the proposed solutions would involve substantial expense to Blooming Desert. The Administrative Law Judge includes the proposals in the recommended decision because they are relevant to the charged violation of A.R.S. § 32-1154(A)(23) and the recommended order. See Ariz. R. Evid. 408(b). [5] See 32-1101 et seq. [6] 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). [7] See A.A.C. R2-19-119(B)(2). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] Black’s Law Dictionary at page 1220 (8th ed. 1999). [10] A.R.S. § 32-1154(A)(2) 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] 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.” [12] 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 ado()1237?|˜™ž¶¾ø 0 1 9 : ; = t u – ž ¥ ¦ Æ Ç È Ó Ô cde}~Öæçÿ î ý øìåÚìÔÊÔÊøÊÔÊÔÊøÊÔìå¿ìÔøÔøÔ¶øÔÔ¶øÔÔ¶øÔ¡¶–Š€vpted 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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