ALJDEC decisions subject to certification as final

2012A-2404-ROC · Registrar of Contractors · 2012-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2012, at 1:00 p.m. APPEARANCES: Complainant Denise Zapffe appeared on her own behalf; Respondent Wesmor Inc. DBA: Day and Night Emergency Services appeared through Aaron Hamman, Project Manager. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.099403-R to Wesmor Inc DBA: Day and Night Emergency Services (“Respondent”). On or about May 7, 2012, the Registrar received a Complaint from Denise Zapffe (“Complainant”) alleging seven specific complaints about Respondent’s repair of damage to the kitchen floor caused by a leaking water pipe at Complainant’s house at 9309 East Citrus Lane South, Sun Lakes, Arizona. Complainant attached to the Complaint a copy of a letter dated February 17, 2012, from Foremost Property and Casualty Insurance Company that stated in relevant part as follows: When I inspected the home, the repairs were not completed. The contractor had you sign a completion statement and it was sent to us for withheld depreciation to be released to you. None of the kitchen cabinets had been replaced. There was a temporary sink for your use. The base trim had not been installed.

I observed that the seams from the subfloor could be felt through the installed linoleum. This indicates that the seams were not floated nor was [L]auan used over the subfloor to avoid this issue.

The floor was spongy in certain areas. I am unsure if the subfloor was braced prior to installation or if all of the damaged subfloor was replaced. I am unable to tell without being able to see under the subfloor.

The vapor barrier under the home was not replaced. A large section of insulation is exposed under the home. The insulation will not stay in place and moisture can penetrate the insulation without this barrier.

The February 17, 2012 letter was unsigned and did not identify the individual who had written the letter. Complainant also attached to her Complaint a copy of her February 17, 2012 request for a Building Confidence Inspection and a notice from the Registrar that its inspector, Randy Cason, would perform a Building Confidence Inspection on March 6, 2012. The Registrar assigned Complainant’s Complaint to Inspector Cason for investigation. On or about May 25, 2012, Inspector Cason performed a second jobsite inspection. On or about June 1, 2012, Inspector Cason issued a Corrective Work Order (“CWO”) that required Respondent to perform corrective action on one of Complainant’s specific complaints within fifteen calendar days, in relevant part as follows: Complaint #1 – Reference Insurance Company’s letter dated 2/17/12. This is a statement not a complaint.

Complaint #2 – Floor uneven and issues with cracking sound when walking on it. Found that there is an area in the kitchen that has a squeaking sound. It appears to be caused by loose nails rubbing against the wood floor joists and the plywood sub-floor. The Respondent is to correct by appropriate means.

Complaint #3 – Floor (sub-floor) not braced. Went under the house, could not see the sub-flooring framing do to the vapor barrier that the Respondent had installed. Can not verify or not if the Respondent had indeed completed the work properly or not.

Complaint #4 – Linoleum to be replaced as seen in sample. The material installed at the time of this inspection is installed within standards. This Inspector does not have any first hand knowledge of what material the Respondent had show[n] the Complainant for this project.

Complaint #5 – Contractor left a mess under the house. Went under the house, did not see any debris left under the house by the Respondent. No Action is required by the Respondent.

Complaint #6 – Joists soaked with water when the Contractor completed the project. Went under the house, did not see any water or signs of water under the house. This Inspector could not see the sub- flooring framing do to the vapor barrier that the Respondent had installed. Can not verify or not if the joist[s] were wet or not.

Complaint #7 – Vinyl was pulled back to treat seams, replaced a second time over the floor. This is a statement not a complaint.

On or about June 21, 2012, the Registrar received Complainant’s request for hearing because Respondent’s work was not up to her standards, in relevant part as follows: The particle board sub floor is not adequately braced, vapor barrier is gone and insulation is loose. Particle board joints are not sealed or level. Sand or dirt shows under the vinyl flooring and can be felt thru the floor. This all needs to be demoed and redone.

This was inspected today by David Moody/All Round Construction, Inc. The above comments are his findings. His ROC is 154429KB2 and his phone number is 602-571-4242.

Only Complainant’s name was on the signature line of the request for hearing. Mr. Moody did not sign Complainant’s request for hearing or any other document that is contained in the Registrar’s record of this matter. The Registrar issued a Citation and Complaint against Respondent charging possible 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 denying any statutory violations and affirmatively alleging that it had fully complied with the CWO. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on November 13, 2012. Inspector Cason testified. Complainant testified, presented the testimony of her neighbor, Barbara Butler, and submitted eighteen photographs of her house. Respondent presented the testimony of two witnesses: (1) Aaron Hamman, Respondent’s project manager; and (2) Adam Gillespie, project superintendent for Respondent’s subcontractor on the project, J C White Inc.[1] Additional Evidence Complainant is a retiree who is 86 years old. Complainant’s house is a double-wide manufactured home installed on piers with a 2’ wide curtain around the bottom of the pedestal. After a plumbing leak damaged the kitchen floor and cabinets in the house, Complainant made a claim to her homeowner’s insurer. Inspector Cason testified that when he performed a Building Confidence Inspection on March 6, 2012, he opined that Respondent had not installed the subfloor correctly. Inspector Cason testified that although he could state an opinion on workmanship, the Registrar will not order a contractor to perform corrective action after a Building Confidence Inspection. Inspector Cason testified that at the Building Confidence Inspection, Complainant informed him that she did not want Respondent back at her house. Inspector Cason testified that Complainant did not allow Respondent to correct the workmanship deficiencies identified at the Building Confidence Inspection. Inspector Cason testified that after Complainant filed a formal complaint against Respondent with the Registrar, he performed a second jobsite inspection on May 25, 2012. Although a pesticide company had sprayed insecticide under the manufactured home that morning, Inspector Cason went under the house to inspect the underside of the floor. Inspector Cason testified that because the vapor barrier covered the bracing for the floor, he could not see whether the floor was adequately braced (CWO Item #3). Inspector Cason testified that the Registrar’s inspectors do not remove construction materials that a contractor has installed to expose a possible workmanship deficiency. Inspector Cason testified that he did not see any debris or signs of water under the house (CWO Item #5 and Item #6). Inspector Cason testified that Complainant hired another contractor to install the kitchen cabinets. Inspector Cason testified that after he issued the CWO, he received a telephone call from Respondent, stating that it had completed the repair that the CWO required. Inspector Cason testified that when he contacted Complainant, she stated that she was not satisfied with Respondent’s repair. Inspector Cason testified that after he told Complainant that she could either contact Respondent or request a hearing, she requested a hearing. Complainant submitted numerous photographs. Complainant testified that Mr. Moody photographed the underside of her house on June 21, 2012, after Respondent had performed repairs and another contractor that Mr. Moody referred to her took the other photographs after Inspector Cason performed the prehearing jobsite inspection. Complainant testified that Mr. Moody and the other contractor both told her that the floor was not floated, that the vapor barrier was not correctly attached, that the joists were not sealed and were loose, and that as a result, the whole underside of the house was coming apart and was dangerous. Complainant testified that Mr. Moody and the other contractor told her that the whole floor needed to be taken up and redone with new materials. Neither Mr. Moody nor the other contractor testified at the hearing. The photographs that Complainant submitted of the underside of her house that she testified Mr. Moody had taken on June 21, 2012, showed loose insulation and pieces of vapor barrier hanging down from the piers and the subfloor. Inspector Cason testified that the underside of the house did not look like that when he performed the May 25, 2012 jobsite inspection. Inspector Cason stated that when he inspected the floor at the prehearing jobsite inspection, it was within the Registrar’s and industry workmanship standards. Inspector Cason testified that what was shown on Complainant’s photographs of the underside of her floor would not cause the floor to be outside applicable standards. Mr. Gillespie testified that while he was performing the project and repairs, he noticed rodents and cats living under Complainant’s house. Complainant testified that she only has two cats from the reservation who live under her house and that she does not believe the cats pulled down insulation and the vapor barrier. The photographs that Complainant submitted that she testified were taken after Inspector Cason performed the prehearing jobsite inspection show the linoleum pulled back and a slight gap between the two plywood boards that comprised the subfloor under Complainant’s kitchen floor. Complainant testified that the gap between the boards was excessive and showed Respondent’s poor workmanship. Mr. Gillespie testified that the subfloor boards were screwed down, not nailed, and that the squeaking noted in CWO Item #2 was caused by the two pieces of plywood rubbing together when they expanded in the heat. Mr. Gillespie testified that because Complainant’s house was a manufactured home that was designed to be moved, rather than a site-built home, there was more movement of the flooring. Mr. Gillespie testified that he took a 1/8” saw and removed enough wood to make the small gap that was shown in Complainant’s photographs to prevent the two boards from rubbing together and squeaking. Mr. Gillespie testified that such removal of a sliver of subflooring complied with industry standards and was a common method to repair squeaking floors. Inspector Cason confirmed that unless a subfloor is constructed of tongue- and-groove boards, a 1/8” gap for expansion and contraction of the subfloor is within workmanship standards. Inspector Cason testified that Complainant’s subfloor is not constructed of tongue-and-groove boards. Inspector Cason testified that he performed a prehearing jobsite inspection, but did not crawl under Complainant’s house again. Inspector Cason testified that he believed that Respondent had appropriately corrected CWO Item #2 because the floor in Complainant’s kitchen no longer squeaked. Inspector Cason testified that because another contractor pulled back the vinyl after he confirmed at the prehearing jobsite inspection that Respondent’s repairs complied with applicable standards, the project no longer complies with such standards. Complainant testified that Respondent twice pulled back the linoleum to expose the subfloor when it performed repairs to her floor. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to 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] Respondent established that Complainant prevented it from performing the repairs that Inspector Cason opined were appropriate at the Building Confidence Inspection. Because the unnamed insurance adjuster, Mr. Moody, and the unnamed contractor who pulled back the linoleum after Inspector Cason performed the prehearing jobsite inspection did not testify at the hearing, their statements to Complainant about the quality of Respondent’s repairs are hearsay.[6] Although hearsay may be admitted in an administrative hearing,[7] it should not be relied upon if it is not the kind of evidence upon which reasonable persons would rely in serious matters.[8] Because no inquiry could be made at the hearing regarding the factual bases for these absent witnesses’ alleged opinions or into these absent witnesses’ professional qualifications, motivation, or possible bias, their opinions are not the kind of evidence upon which reasonable persons would rely in serious matters. Therefore, Complainant did not establish that any of the items that the CWO did not require Respondent to correct were deficient unprofessional or not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[9] Respondent established that it repaired CWO Item #2 in a professional and workmanlike manner. Moreover, the subsequent contractor’s modification of Respondent’s repair precludes any conclusion that Respondent’s repair that was not visible to Inspector Cason was deficient in any respect.[10] Therefore, Complainant did not establish that Respondent failed to comply with the Registrar’s written directive, in violation of A.R.S. § 32- 1154(A)(23).[11] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar dismiss Complainant Denise Zapffe’s Complaint in Case No. 2012-2404 against Respondent Wesmor Inc DBA: Day and Night Emergency Services’ License No. B.099403-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 28, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] According to the Registrar’s public website, J C White Inc. holds License No. KB-2.251857-D. [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(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] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [7] See A.R.S. § 41-1092.07(F)(1). [8] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [9] 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.” [10] Cf. A.R.S. § 32-1155(C)(2) (“The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if . . . [t]he contractor's work has been subject to neglect, modification or abnormal use.”). [11] 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