ALJDEC decisions subject to certification as final

2011A-7007-ROC · Registrar of Contractors · 2012-07-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2012, at 8:00 a.m. APPEARANCES: Complainants Gregory Priore and Debbie Swan appeared on their own behalf; Respondent Skyline Dream Builder, Inc. appeared through Dennis Bain Van Horn, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.238409-R to Skyline Dream Builder, Inc. (“Respondent”). 2. Gregory Priore and Debbie Swann (“Complainants”) filed a complaint with the Registrar regarding Respondent’s replacement of windows at their house at 5101 East 16th Avenue, Apache Junction, Arizona. 3. The Registrar assigned the complaint to its inspector, Beau Cruz, for investigation. Inspector Cruz issued a Corrective Work Order (“CWO”) to Respondent that required it without 15 calendar days to perform the following corrective work: Complaint 2) All installed windows leak heavily: Applied water to windows via hose and nozzle supplied by complainant. Ensure that all the installed X/O slider windows and fixed window that contractor replaced in the home have been installed properly and as per manufacturer[’]s instructions and specifications.

Complaint 3) Had wood headers replaced on all installed windows and on remaining windows not replaced. Total 11 wood headers removed and replaced with stucco. All windows leak: Respondent removed eleven 2 x 6 rough sawn decorative headers with the exception of front of the structure. Respondent is to ensure that installations of windows have been installed as per manufacturer’s instructions [and] specifications and ensure that preparation of the surface and applications of stucco was properly done, and as per all applicable standards.

The CWO did not require Respondent to take any corrective action with respect to its alleged order of the wrong windows because Complainants did not provide any documentation to establish that complaint. 4. The Registrar issued a Citation and Complaint against Respondent charging A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 3, 2012. Such prior License record reflects that Respondent’s License was current and that only one complaint was pending against the license. Hearing Evidence 7. After Complainants’ house suffered water damage, they made a claim to their homeowner’s insurer to repair the damage. Ms. Swann testified that the damage was caused by leaking scuppers. Mr. Priore testified that although the windows did not leak, the leak had broken the seal of some of the double-paned windows and caused them to become cloudy. Therefore, Complainants decided to replace eight or nine windows on their house. 8. Complainants’ house is Santa Fe style and had decorative wooden headers or vigas above the windows. As part of the repairs, Complainants had the vigas removed from above all the windows except those in the front of the house and had stucco applied to the openings where the vigas had been located. 9. The parties’ contract was verbal, rather than in writing. 10. Mr. Priore testified that Respondent contracted to select and to purchase, as well as to install, the windows. 11. Respondent’s qualifying party and officer, Dennis Bain Van Horn, denied that Respondent selected the replacement windows. Mr. Van Horn testified that he measured the windows and faxed the measurements to Bill Miller, who is the head of the window department at Home Depot. Mr. Van Horn testified that Mr. Priore picked out the replacement windows with Jim Westin, a salesman at Home Depot. 12. When Home Depot had assembled the windows that were ordered, Mr. Priore went to Home Depot and paid the full invoiced cost of the windows, $1,975.20. The customer invoice showed Respondent’s name and “Jim” handwritten on the upper right corner. 13. Mr. Van Horn testified that Complainants only paid Respondent $600.00 to install the windows that Mr. Priore purchased. Mr. Van Horn testified that he referred Complainants to a stucco subcontractor and that they paid the subcontractor directly to repair the areas where Respondent removed the decorative vigas. 14. Respondent picked up the windows that Mr. Priore had purchased from Home Depot and installed them in Complainants’ house. 15. Complainants submitted an e-mail from Douglas Schmid, who was identified as a sales consultant at Home Depot, that the windows that were installed at Complainants’ house should have had a larger frame size and that it would cost $9,436.00 to purchase and install windows that were the right size, including drywall and wood repair. Mr. Schmid did not testify at the hearing. 16. Mr. Priore testified that the windows leaked because they needed to be more recessed in the window openings. 17. Inspector Cruz testified that at the original jobsite inspection, the windows were sealed with plastic. Inspector Cruz testified that when the windows were sealed, water still infiltrated the house, showing that the windows themselves did not leak. 18. Inspector Cruz testified that he performed a prehearing jobsite inspection. At the prehearing inspection, he saw that the stucco where Respondent had removed the vigas was painted and sealed and that Respondent had installed metal flashing on the windows in a professional and workmanlike manner. 19. Inspector Cruz testified that he performed a water test at the prehearing inspection and saw evidence that water was infiltrating through the stucco on the parapet wall, above where the decorative vigas had been removed. Inspector Cruz testified that the stucco above Respondent’s repairs was not treated or sealed. 20. Complainants submitted a report entitled ASTM E 1105-00 Field Testing of Installed Windows, Doors and Curtain Walls for Water Penetration Resistance prepared by R.W. Olsen. Mr. Olsen did not testify at the hearing. 21. Inspector Cruz testified that he did not think that Mr. Olsen’s opinion in the report that the windows leaked was accurate. Inspector Cruz testified that he could not tell whether the infiltration of water into Complainants’ house was due to Respondent’s work or a defect in the house, such as the house wrap or the original installation of the windows and/or flashing. 22. Respondent submitted photographs of the vigas that it had removed from Complainants’ house. The photographs showed extensive damage to the wood. Mr. Van Horn testified that the damage was caused by water intrusion. Mr. Van Horn testified that after years of water intrusion, the original vapor barrier around the house was crumbling. 23. Respondent also submitted photographs that showed cracks in the stucco on Complainants’ house above where the decorative vigas had been removed. Mr. Van Horn testified that if the stucco on Complainants’ house above the repairs was not sealed and painted, water would continue to infiltrate. 24. Inspector Cruz testified that on the window closest to the patio on Complainants’ house where the framing had been exposed on the interior, he saw light coming through a pinhole next to the jamb. Inspector Cruz testified that the pinhole was caused by shrinkage of the caulk or foam that Respondent had used to seal the space between the frame and the window. Inspector Cruz testified that water could enter Complainants’ house through the pinhole. Inspector Cruz did not testify that he observed any other deficiencies in Respondent’s installation of or repairs to the windows at Complainants’ house. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to resolve this dispute.[1] 2. Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 3. Complainants did not establish that Respondent selected the windows or that the windows were not suitable for installation on Complainants’ house. 4. Complainants also did not establish that Respondent’s installation of the windows did not comply with the manufacturer’s instructions and specifications, in violation of A.R.S. § 32-1154(A)(2).[4] 5. Complainants also did not establish that it is more likely that water infiltration into their house was caused by Respondent’s installation of the windows and removal of the decorative vigas, rather than Complainants’ failure to seal and paint the stucco on the parapet wall above the area where the vigas had been removed or some other preexisting problem in Complainants’ house that Respondent did not contract to repair. 6. Complainants established that Respondent violated A.R.S. § 32- 1154(A)(3), specifically A.A.C. R4-9-108,[5] and A.R.S. § 32- 1154(A)(23)[6] in its initial construction of and failure to repair the pinhole next to the jamb of the window next to the patio. Complainants did not establish that Respondent violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, or A.R.S. § 32-1154(A)(23) in any other respect. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar suspend Respondent Skyline Dream Builder, Inc.’s License No. B.238409-R until it repairs the pinhole next to the jamb of the window next to the patio of Complainants’ house. It is further recommended that if on or before the effective date of the Registrar’s order, Respondent submits written proof that is satisfactory to the Registrar that Respondent has repaired in a professional and workmanlike manner the pinhole next to the jamb of the window next to the patio of Complainants’ house, the Registrar not suspend Respondent’s license but, instead, close Complainants Gregory Priore and Debbie Swann’s complaint in Case No. 2011-7007. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, July 6, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] 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). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] 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.” [5] 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.” [6] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826