ALJDEC decisions subject to certification as final

2012A-2883-ROC · Registrar of Contractors · 2013-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: January 22, 2013, at 8:00 a.m. and January 29, 2013, at 8:00 a.m.; the record was held open until February 8, 2013, to allow the parties to submit post-hearing legal memoranda and one specifically identified additional exhibit. APPEARANCES: Complainant James Bryan Ball, Esq., Poli and Ball, P.L.C., represented himself; Respondent Build Inc. was represented by Andrew Q. Everroad, Esq., Bonnett, Fairbourn, Friedman & Balint, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.210681-R to Build Inc. (“Respondent”). 2. On or about June 5, 2012, James Bryan Ball (“Complainant”) filed a Complaint against Respondent with the Registrar regarding its construction of a custom home for Complainant at 10815 North Ventura Court, Fountain Hills, Arizona. The Complaint alleged 35 specific items of complaint. 3. The Registrar assigned the Complaint to its inspector, Randy Cason, for investigation. On or about June 25, 2012, Inspector Cason performed a jobsite inspection. On July 26, 2012, Inspector Cason issued a Corrective Work Order (“CWO”) to Respondent that required it to perform certain corrective action within twenty days. On August 6, 2012, Inspector Cason issued an Amendment to the CWO that provided additional direction to Respondent. 4. After Respondent did not resolve Complainant’s Complaint to his satisfaction, the Registrar issued a Citation and Complaint charging Respondent with possible violations of 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. Respondent filed a timely written answer to the Citation and Complaint denying any statutory violations. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A hearing was held on January 22, 2013, and January 29, 2013. Inspector Cason testified. Complainant submitted fifty exhibits, testified on his own behalf, and presented the testimony of Robert J. Bacon, who designed the custom home. Respondent submitted twenty-five exhibits and presented the testimony of Richard Fairbourn, Respondent’s qualifying party and officer. Hearing Evidence 8. In 2009, Complainant and his wife purchased a hillside lot in Fountain Hills on which they planned to build their custom home. 9. Complainant and his wife hired Mr. Bacon to design their custom home. Mr. Bacon testified that he and Complainant and his wife were trying to achieve a home that would promote a simple, Southwestern lifestyle with indoor and outdoor living spaces that were full of light and not compartmentalized, with large overhangs over outdoor patios. 10. Although Mr. Bacon has designed many custom homes and commercial buildings over the past fifty years, he is not a registered architect in any state. 11. Complainant testified that the custom home was designed to look like an old adobe ranch house that had been on the land for more than 100 years, but that had modern amenities. 12. Mr. Fairbourn is an architect who is registered with the Arizona Board of Technical Registration. Mr. Fairbourn obtained a contractor’s license in 1994 or 1995 and subsequently built more than custom homes valued at approximately $100 million. 13. Mr. Bacon referred Complainant and his wife to Respondent. In May 2009, Complainant hired Mr. Fairbourn to prepare architectural plans for the custom home based on Mr. Bacon’s designs. Mr. Fairbourn’s employee, Mark Allen, under Mr. Fairbourn’s supervision prepared plans that were sealed with Mr. Fairbourn’s architect’s stamp and approved by the Town of Fountain Hills. 14. In April 2010, Complainant and his wife and Respondent entered into a contract for Respondent to act as general contractor in the construction of the custom home. The amount of the contract was Respondent’s costs plus 12% for profit and overhead, with a maximum guaranteed price of $1,580,117.00, including a $30,000.00 contingency for cost overruns. The contract provided that Respondent would complete construction within twelve months. 15. After Respondent started construction, Complainant and his wife were frequently present at the jobsite and chose many of the subcontractors and material suppliers that Respondent used in construction of the custom home. 16. As construction progressed, disputes arose between the parties and their relationship became strained. The contract provided that Mr. Bacon would mediate disputes. However, Mr. Bacon testified that he was not personally available when the disputes arose between the parties regarding the construction of Complainant’s custom home because after the development industry “hit the skids,” Mr. Bacon moved to his other home in New Hampshire. Mr. Bacon testified that he understood that his role was to represent Complainant and his wife in their dealings with Respondent. 17. On or about August 27, 2011, Mr. Bacon sent an e-mail to Complainant in which he praised Respondent’s ”commitment to quality under duress and now time pressure . . . .”[1] Mr. Bacon testified that the duress that his August 27, 2011 e-mail referred to was client expectations that were not reasonable, given the vagaries of construction of a custom home. 18. Eventually, Complainant refused to pay Respondent retention due to what he considered to be unreasonable delay and unfinished items of construction. 19. The custom home passed the Town of Fountain Hills’ final building inspections. On December 8, 2011, the Town of Fountain Hills issued a certificate of occupancy for the custom home. 20. At the end of December 2011, Respondent sent Complainant a final invoice in the amount of $146,265.40. After Complainant challenged Respondent’s accounting, Respondent reduced the amount of the final invoice to $137,804.80. In February 2012, after Complainant refused to pay the final invoice, Respondent failed a mechanic’s lien against the property. Because Complainant and his wife needed to remove Respondent’s mechanic’s lien to refinance their construction loan, Complainant paid the final invoice under protest. According to the Complaint, Complainant and his wife paid a total of $1,663,709.70 to Respondent to construct the custom home. 21. Inspector Cason perform a prehearing jobsite inspection on January 18, 2013. By the time of the hearing, Respondent had resolved many items on the Complaint, but eleven items remained at issue. Absence of Control Joints in Adobe Walls (CWO #1B) Adobe Not Meeting Code Requirements or Industry Standards (CWO #1C) 22. Complainant’s first item on the Complaint was that the adobe was “[c]racked and unstable,” that control joints were “added after-the- fact,” and that two tests revealed that the adobe “failed to meet its original representations as well as comply with Building Code.” 23. Inspector Cason’s July 26, 2012 CWO required Respondent to repair cracks, gaps, and holes in the adobe bricks. The July 26, 2012 CWO also stated that Inspector Cason had verified that Respondent had cut in control joints after the installation of the adobe bricks on the exterior of the home, and therefore required Respondent “to comply/correct with the Manufacturer[’]s specifications regarding installation of this product by appropriate means.” 24. With respect to Complainant’s complaint that the adobe bricks did not comply with applicable building code, Inspector Cason’s July 26, 2012 CWO stated that “this Single Family [Residence] had passed the final building inspection by the Town of Fountain Hills Building Department.” 25. Inspector Cason testified that at the prehearing jobsite inspection, he went over the items that had not been resolved. Inspector Cason did not testify that Complainant called any unrepaired cracks in the adobe to his attention. With respect to the alleged failure of the adobe to meet applicable code, Inspector Cason testified that the Registrar defers to the local building authority on code compliance issues. 26. The adobe bricks used in the construction of Complainant’s residence are 16” long, 4” wide, 4” deep, and weigh approximately five pounds. The adobe bricks are used as a veneer and are anchored to wood framing members with corrugated ties. The adobe bricks are not structural and do not support anything other than a portion of their own weight. The adobe veneer covers a waterproof membrane that provides waterproofing for the interior of the house. 27. Although Complainant stated that the control joints were added after the adobe veneer began to crack, he did not dispute that Respondent had repaired the cracks and that he did not point out any new cracks to Inspector Cason at the prehearing inspection. Instead, Complainant argued that he feared that the adobe veneer would continue to crack, possibly causing someone to suffer a personal injury if the veneer cracked off its anchor, and that he would have to disclose to a subsequent purchaser that the adobe bricks did not comply with the compressive strength requirements of the 2006 International Building Code (“IBC”). 28. Complainant argued that because the Town of Fountain Hills’ building inspector did not test the compressive strength of the adobe veneer, the fact that the custom home passed the town’s final building inspections was not determinative. 29. Complainant submitted a printout from the Town of Fountain Hills that stated that for all building permit applications received on or after April 17, 2008, the IBC and the 2006 International Residential Code (“IRC”) applied. Complainant submitted Section 2109.8.1.1 of the IBC concerning unstabilized adobe used in adobe construction that contained the following requirement: Compressive strength. Adobe units shall have an average compressive strength of 300 psi (2068 kPa) when tested in accordance with ASTM C 67. Five samples shall be tested and no individual unit is permitted to have a compressive strength of less than 250 psi (1724 kPa).

Complainant submitted the results tests of the adobe bricks used as veneer on his home that showed that their compressive strength ranged from 180 psi to 220 psi, with an average strength of 210 psi. 30. Respondent pointed out that Section 101.2 of the IBC provides that detached one-family dwellings like Complainant’s custom home were exceptions to the IBC’s scope and that such structures are required to comply with the IRC. Mr. Fairbourn testified that the IRC did not contain any compressive strength requirements for adobe. 31. Respondent pointed out that Chapter 21 of the IBC, which includes Section 2109.8.1.1, at IBC § 2102.1 defined “adobe construction” as “[c]onstruction in which the exterior load-bearing and nonload-bearing walls and partitions are of unfired clay masonry units” and that the definition of “wall” did not include a veneer. Respondent also pointed out that Chapter 14 of the IBC concerning exterior walls at IBC § 1402.1 defined “veneer” as “[a] facing attached to a wall for the purpose of providing ornamentation, protection or insulation, but not counted as adding strength to the wall.” Mr. Fairbourn testified that builders call adobe veneer “thick paint.” 32. Complainant submitted IBC § 1404.4 concerning masonry that provided that “[m]asonry units, mortar and metal accessories used in anchored and adhered veneer shall meet the physical requirements of Chapter 21.” 33. Respondent pointed out that although the websites of the adobe suppliers that Complainant submitted stated that the adobe blocks that they supplied complied with the IBC, the websites also stated that the adobe blocks “are used structurally for 16 inch thick walls” and that the adobe block was “stabilized sun-dried and fast cured load bearing units.” 34. Complainant stated in his post-hearing memorandum that builders in southern Arizona commonly use adobe and that Pima County, the City of Tucson, the Town of Marana, and the Town of Sahuarita all adopted both the 2006 IBC and the 2006 IRC, but that all of these authorities had “deleted the ‛Adobe Construction’ provisions from the 2006 IBC and replaced them with much more detailed standards for ‘Earthen Structures’ consisting of adobe, burnt adobe, rammed earth and hydraulic pressed units” and that earthen materials were used for residential, not commercial construction.[2] Complainant stated that “all four political subdivisions maintained the 300 psi compressive strength requirement for adobe block.”[3] 35. Complainant testified that the Town of Fountain Hills’ building inspector, Jason Field, said that if the IRC did not provide any requirements for the compressive strength of adobe blocks, he would look to the IBC for guidance. Mr. Fairbourn testified that Mr. Field told him that the IBC requirements for adobe block did not apply to adobe veneer. Control Joints in Retaining Walls (CWO #3) 36. Item #3 on the Complaint was that the concrete retaining walls did not have the control joints that the plans required. Inspector Cason’s July 26, 2012 CWO did not require Respondent to take any action on this item because “Respondent supplied documentation from Montgomery Engineering & Management LLC dated 3/15/2011 stating that expansion joints in the retaining walls are not required if the length of the wall is less than 40 feet.” 37. Complainant did not present any evidence to establish that the Registrar’s standards required Respondent to install control joints in any of the retaining walls. Instead, Complainant argued that “[a]lthough [Respondent] produced an engineering report stating that the retaining walls had sufficient rebar to make up for the lack of control joints, the failure to include control joints is another demonstration of [Respondent’s] inability to follow its plans.” Deviations from Plans in Hallway off the Great Room (CWO #4) 38. Item #4 on the Complaint was that Respondent had deviated from the foundation and floor plan in the hallway between the kitchen and great room. 39. Inspector Cason’s July 26, 2012 CWO stated that the hallway was off by approximately six inches per the building plans. Nonetheless, the CWO did not require Respondent to take any action on this item because “Complainant was aware of this issue prior to the completion of the project” and had agreed that Respondent should make some adjustment to the adjacent rooms to move forward with the project. 40. Complainant testified that Respondent had made a mistake in locating scores in the finished concrete floors and that it had moved the hallway when it realized its mistake. Complainant testified that moving the hallway caused a profound ripple effect in the size of an audio closet, cabinetry in a home office, the relative size of the dining area and living area in the great room, the size of the concrete benches, and the line of sight. 41. Respondent submitted evidence that on April 17, 2011, approximately fourteen months before Complainant filed the Complaint with the Registrar, he sent an e-mail to Respondent’s onsite superintendent that indicated that he was aware of the issue with the hallway, that he had obtained a recommendation from Mr. Bacon on how to proceed, and that he asked Respondent to provide drawings of the hallway as originally designed, as constructed to that point, and showing Mr. Bacon’s recommendations.[4] Respondent also submitted the drawings that it provided at Complainant’s request,[5] Complainant’s April 20, 2011 response to the drawing that authorized Respondent to change the hallway,[6] and Complainant’s later admonition to Respondent that “[t]he change should be at your cost.”[7] Leaking roofs over the patios on the South Side of the Home and Outside the Casita (CWO #5) 42. Item #5 on the Complaint was that the roof had leaks and run-off issues. Inspector Cason’s July 26, 2012 CWO required Respondent to take appropriate corrective action to repair the leaks. 43. Inspector Cason testified that he went up on the roof at the prehearing inspection and Complainant showed him an area on the south side of the house where the roof over an exterior patio was still leaking. Inspector Cason testified that Complainant showed him pictures of the leak and that he could see rust stains on the area below the leak. 44. In response to Complainant’s questions, Inspector Cason testified that it is possible to make a metal roof watertight and that he considered any covering over an enclosed area to be a roof, even if the covered area is on the exterior of the house. 45. In response to Respondent’s question, Inspector Cason testified that he saw the drip edge and that there was a possibility that a tile or metal roof would not shed 100% of the water, but that a membrane underneath the roof would be expected to shed the water that the roof material did not shed. 46. The custom home has a corten metal roof. A mineral cap membrane covered all interior living areas. Both Mr. Bacon and Mr. Fairbourn testified that the mineral cap was intended to provide waterproofing for the enclosed living areas and that the corten simply provided an aesthetic metal covering. 47. To make the home appear more like a century-old ranch house, Mr. Bacon’s design was that the mineral cap stopped at the exterior walls so that the underside of the metal corten roof could be seen from the patios. On April 7, 2010, Mr. Bacon informed the parties that in his design, “[a]ll the overhangs (eaves, patios, walkway covers, etc) are exposed metal panels on the underside, so when you look up you see pre- rusted Western Rib metal panels.”[8] Mr. Bacon continued that he intended the mineral cap to provide the waterproofing membrane to ensure a waterproof roof WITHOUT RELIANCE UPON THE METAL PANELS.”[9] Mr. Bacon testified that repairs could lessen leakage, but that the corten metal on the patios was not intended to provide a waterproof membrane. 48. Complainant submitted photographs of the roof that he took during a significant rainstorm shortly before the hearing dates that showed a large amount of water running down the drip edge on the south patio. Complainant quoted the Registrar’s Workmanship standards for Licensed Contractors at 21 (June 2009) that “[r]oofs should not leak and should be installed to withstand heavy rains.” 49. Mr. Bacon designed the corten metal roof to be installed in several sections over a single expanse, with foam gaskets in the step-downs to reduce the infiltration of wind-driven rain. As value engineering to reduce costs at the project, Mr. Fairbourn testified that he ordered long sheets of the corten roofing to install it without the step- downs. When Complainant refused to authorize elimination of the step- downs to reduce costs, Respondent’s subcontractor fabricated the step- downs in the field from the long sheets. 50. Complainant argued that the fabrication in the field shorted the overlap in the step-downs and increased the possibility that wind- driven rain would infiltrate through the step-downs. Mr. Fairbourn testified that Respondent made up the length at the peak of the roof, which was covered by corten flashing. 51. Mr. Bacon and Mr. Fairbourn testified that due to the design of the roof, wind-driven rain would run down the mineral cap and “drool” over the drip edge of the south patio. Mr. Bacon and Mr. Fairbourn testified that installation of a gutter beneath the drip edge on the south patio would keep water away from the seating and other enclosed areas on the south patio. However, Complainant did not want a gutter on the south patio. 52. Inspector Cason testified that at the prehearing inspection the valley in the roof outside the casita still was not properly sealed. 53. The casita is not part of the main house, but is joined to the main house by the corten roof over the patio outside the casita. Although Respondent installed additional metal flashing and additional gaskets at the valley to comply with the CWO, Mr. Fairbourn acknowledged that additional work needed to be performed at this location. / / / / / / / / / / / / Missing Range and Grill Hoods and Barbeque Counters/Carts (CWO #7A and Amended CWO #7A) North Side Gate Catch Side Not Secure (CWO #7B) 54. Item #7 on the Complaint alleged that the metal/ironwork, including the gates, kitchen and barbeque hoods, “etc.” were incomplete or of poor quality. 55. The July 26, 2012 CWO required Respondent to secure the catch side of the gate on the north side of the property. 56. Inspector Cason testified that although Respondent’s representative stated at the prehearing inspection that no one had worked on the gate on the north side of the property, at that time the gate was not moving as much as it had at the initial jobsite inspection, was properly secured to the ground, and was within the Registrar’s standards. Inspector Cason testified that it was possible that changes in the water table or installation of landscaping had made the gate more secure. 57. Complainant’s post-hearing memorandum stated that the catch side of the gate still is not secured properly and that “[t]he gate shakes violently and rattles when it self-closes.”[10] 58. The July 26, 2012 CWO also required Respondent to complete installation of the kitchen hood. The August 6, 2012 amendment to the CWO required Respondent to complete installation of the barbeque hood vent and grill. Although Complainant at the hearing complained about missing counters and carts, neither the Complaint, the July 26, 2012 CWO, nor the August 6, 2012 amendment to the CWO mentioned these items. 59. Inspector Cason testified that the kitchen hood, barbeque vent hood, and barbeque grill were still missing at the prehearing inspection. 60. Mr. Fairbourn testified that Respondent had not provided the kitchen hood, barbeque vent hood, and barbeque grill because Complainant had not approved a design for these items. Respondent submitted plans and e-mails that established that Complainant had failed to approve plans for these items. 61. Mr. Fairbourn stated that Complainant had not paid for the carts. Respondent attached to its post-hearing memorandum an e-mail from Complainant dated February 8, 2013, that stated “[t]he hoods issue is resolved,” that he hoped the carts issue could be resolved shortly, and that he would be willing to pay half up front and half at delivery for the carts. 62. Complainant’s post-hearing memorandum acknowledged that the hood issue had been resolved, but asked the Registrar to order Respondent to complete the carts. Tempering Haze on Windows (CWO #9) 63. Item #9 on the Complaint was that there was haze in the Kolbe & Kolbe windows and doors due to improper installation. The July 26, 2012 CWO required Respondent to correct the haze or distortion in the large windows in the great room, master bedroom, and casita and to repair the small pits on the bottom exterior side of the glass in the master bathroom window. The August 6, 2012 amendment to the CWO added that Respondent was also required to correct the haze in the master bathroom windows around the bathtub. 64. Inspector Cason testified that at the prehearing jobsite inspection, he saw that the haze had been corrected. However, Inspector Cason testified that the double pane in one of the windows that had been replaced in the great room now had a scratch inside that was visible from a distance of 15’. 65. Respondent agreed to have Kolbe & Kolbe replace the window, and acknowledged that two other windows in the great room had similar defects and needed to be replaced. 66. Complainant testified that many windows still have a tempering haze that is especially prevalent in sunlight and that he believed that the windows did not meet ASTM standard C 1036. Because he and his wife were the only ones who saw the windows all day in all conditions, Complainant argued that his testimony regarding the condition of the windows was entitled to greater weight. / / / / / / / / Trim Carpentry (CWO #10B and #10C) 67. Item #10 of the Complaint stated that the window framing/sills and reveals were poorly constructed and sealed. 68. The July 26, 2012 CWO required Respondent to correct the following window and door framing: (1) The right side door in the great room, where the window frame was splitting; (2) The far window to the right in the great room, where the window trim was not properly attached; and (3) The east window in the casita, where there was a gouge in the casing (CWO #10A). 69. The July 26, 2012 CWO also required Respondent to correct two areas of the seal coat next to the door to the right in the great room at the bottom of the frame jamb that felt rough and bumpy to Inspector Cason (CWO #10B). 70. Inspector Cason testified that at the time of the prehearing jobsite inspection, Respondent had complied with CWO #10A and #10B. Inspector Cason testified that Complainant wanted to raise a new issue that the CWO did not address and that Complainant would need to file a new complaint with the Registrar to address that new issue. 71. Complainant testified and submitted photographs to show that Respondent had used putty in the doors and windows that was much lighter than the surrounding wood. Complainant also testified that most, if not all of the interior door jambs had not been sealed. 72. Mr. Fairbourn testified that sunlight causes natural wood to “sun burn” or darken after it is installed, which after time causes the putty that was installed with the wood not to match the sun burnt wood. Mr. Fairbourn testified that the wood would continue to change color to some extent and that it is not possible to use putty that will match exactly the shade that the wood later attains. 73. Complainant testified that two corners where vertical pieces of wood had moved out no longer formed a smooth 90° corner. 74. Mr. Fairbourn testified that the lighter areas of wood on the bottom side of the horizontal piece showed that the vertical pieces had moved since installation, perhaps when Complainant and his wife installed the shades. Painting (CWO #13 and #14) 75. Item #13 on the Complaint was that the interior door jambs were warped, damaged, and over-painted. The July 26, 2012 CWO noted that touch-up painting was needed throughout the property and that the touch-up paint in the garage did not match the original color. 76. Item #14 of the Complaint was that the interior paint was unfinished and poorly executed, that the reveals were over-painted onto the jambs, floors, and sills, and that the garage exterior door was poorly painted. The July 26, 2012 CWO required Respondent to touch-up the interior of the house where necessary and to touch-up the bottom of the garage service door. 77. Inspector Cason testified that at the prehearing inspection, he saw that some touch-up paint was complete, but that there were still areas in the great room, master bedroom, laundry room, and master bathroom that required additional touch-up. In addition, Inspector Cason testified that paint was peeling off of the master bedroom walk-in closet. 78. With respect to CWO Item #14, Inspector Cason testified that although Respondent had attempted to correct the bottom section of the garage service door, it appeared that the door had been closed while the paint was still tacky, which cased a portion of the fresh paint on the inside edge of the door to peel off. 79. Inspector Cason testified that Respondent’s touch-up to the paint in the garage met the Registrar’s standards, although reflected light showed some variation. 80. Inspector Cason testified that the Complainant’s house has plaster walls with a ½” gap between the corner edge of the wall and door jamb or window frame that formed a reveal. In addition, the drywall did not go all the way to the floor. Inspector Cason testified that Complainant showed him additional examples of areas in the reveal that Respondent had failed to properly touch-up and told him that such areas were present throughout the house. 81. Mr. Fairbourn testified that his painting subcontractor attended Inspector Cason’s first site inspection in June 2012, and that he contacted Inspector Cason about the areas of painting touch-up that needed to be addressed. Mr. Fairbourn testified that Inspector Cason told him that he had pointed out the areas that needed to be addressed to the painting subcontractor at the jobsite inspection and that after the inspection, the painting subcontractor confirmed that it touched up all the areas that Inspector Cason had pointed out. 82. As examples of Complainant’s alleged unreasonable standards, Respondent submitted photographs of its subcontractor lying on the floor underneath the cantilevered counter in the master bathroom to see alleged painting deficiencies.[11] 83. Complainant acknowledged that after he was dissatisfied with the first painting subcontractor, whom Respondent had hired on his recommendation, because the subcontractor wanted to charge an extra $5,000.00 to paint the reveals, which he considered to be part of the contract. Complainant testified that he and his wife had attempted to paint the reveals in the pantry and possibly around the north door leading to the courtyard and in the laundry. Respondent submitted Complainant’s August 8, 2011 e-mail that stated that he had painted the reveals in the dining room, kitchen, pantry, laundry room, north hall window, north hall door, study door, and laundry door, but that because it got dark before he could pull tape off everything, he thought that he had pulled some tape off too quickly, and that touchup would be required.[12] 84. Complainant testified that Respondent’s second painting subcontractor came out at least three times to attempt to comply with the CWO and that he or his wife pointed some areas out to the subcontractor. Complainant testified that paint still needed to be touched up everywhere, including one area in the casita that could not be seen without a ladder. Rusted Handrail (CWO #19) 85. Item #19 of the Complaint stated that the blackening technique on a railing was not fully executed to prevent rusting. The July 26, 2012 CWO found that the railing had been painted per the contract specifications, but required Respondent to correct an area of rust that Inspector Cason saw on the railing. 86. Inspector Cason testified that at the prehearing inspection, he saw that the railing on the stairs to the south patio had been corrected, but that there were still a couple of places that the repairs needed to be touched up. 87. Mr. Fairbourn and Complainant agreed that the metal on the custom home was not to be painted to make it appear more like a 100-year-old ranch house. Because Complainant did not want rust on a hand-railing, he asked Respondent to devise a method to preserve the rustic look of the metal hand-railing, but prevent rust from flaking off onto the hands of people who used the railing. 88. Respondent offered Complainant an option from Tuberty Designs that involved application of a proprietary finish that would keep the natural look of the steel which protecting the steel from the elements as much as possible. Mr. Fairbourn testified that neither he nor Tuberty Designs guaranteed that the finish would not rust. Respondent submitted an e-mail from Thomas Tuberty dated November 28, 2012, as follows: [Complainant] stated to me the objective was rust not coming off on clothes. In my opinion it is by far the best looking steel on the site. A lot is silver some rust some black. . . . If you want to black/spray paint it. . . . Want it darker with transparency I would suggest going to industrial metals and trying some of the metal stain.[13]

89. Complainant testified that he was told that the rails would be rust resistant and that although he and his wife liked the rust patina on the raw metal throughout the exterior of their home, “because people will touch and lean up against the guard rails, it was essential to keep the rails rust-free.”[14] License History 90. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 26, 2013. Such prior License record reflects that Respondent’s License No. B.210681-R is current and that one complaint was pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[15] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[16] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[17] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[18]

Complainant did not establish that the IRC or the IBC required 4”-thick adobe brick veneer to comply with the compressive strength requirements for 16”-thick adobe structural blocks (CWO #1C). Complainant also did not establish that cracks currently exist in the adobe veneer that requires further corrective action by Respondent. Therefore, Complainant did not establish that Respondent violated any of the charged statutes with respect to the adobe veneer. Complainant did not establish that the water that “drools” off the drip edge onto the south patio is a result of Respondent’s poor workmanship, as opposed to Mr. Bacon’s decision to design the patio cover to achieve a rustic look, rather than to achieve a waterproof roof over the south patio (CWO #5, first part). Therefore, Complainant did not establish that Respondent violated any of the charged statutes with respect to the alleged leaks on the south patio. Complainant did not establish that the rust on the handrail is the result of Respondent’s poor workmanship, as opposed to Complainant’s conscious design decision to leave raw metal to achieve a rust patina on the metal on the exterior of their home (CWO #19). Respondent established that there is no material that Complainant and his wife would approve that would keep the rails rust-free, while preserving the rust patina that they desire. Therefore, Complainant did not establish that Respondent violated any of the charged statutes with respect to the hand-railing on the exterior stairs. Complainant did not establish that Respondent departed from plans, specifications, or any building code in any material respect that was prejudicial to another without Complainant’s consent with respect to the absence of control joints in the adobe walls (CWO #1B), the control joints in the retaining walls (CWO #3), and the hallway off the great room (CWO #4). Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(2).[19] A.R.S. § 41-1092.05(D)(3) required the Registrar to provide Respondent with “[a] short and plain statement of the matters asserted.” “Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.”[20] Because the Complaint that Complainant filed with the Registrar did not raise and the CWO did not address the barbeque counters and carts (attempted addendum to CWO #7A), the poorly matched putty on the wood trim, or the tilted corner trim (attempted addenda to CWO #10B and #10C), the Administrative Law Judge cannot address these alleged workmanship deficiencies in this decision. Complainant did not establish that the north gate’s catch side was excessively loose or that that Respondent violated any of the charged statutes with respect to the gate (CWO #7B). Because Complainant and his wife touched up the paint in the dining room, kitchen, pantry, laundry room, north hall window, north hall door, study door, and laundry door to save money, Respondent is not responsible for any deficiencies in the paint touch-up in these areas. Complainant established that Respondent failed to properly touch up the paint in the great room, the master bedroom, the master bathroom, and the master bedroom walk-in closet (CWO #13 and #14). Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[21] and A.R.S. § 32-1154(A)(23)[22] with respect to the rooms that Inspector Cason testified were still deficient, with the exception of the laundry. Complainant established that Respondent failed to properly touch up the garage service door (CWO #14). Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23) with respect to the garage door. Complainant established that the leaks in the patio roof outside the casita (CWO #5, second part) are the result of Respondent’s poor workmanship and that Respondent failed to properly repair the leaks to comply with the CWO. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). Complainant established that Respondent’s initial installation of and failure to repair the three windows in the great room that have scratches on the glass panes were deficient (CWO #9), in violation if A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Complainant did not establish that Respondent violated any of the charged statutes with respect to the tempering haze on any of the windows. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent Build Inc.’s License No. B.210681-R shall be suspended until Respondent has repaired in a professional and workmanlike manner the touch-up paint in the great room, the master bedroom, the master bathroom, and the master bedroom walk-in closet and on the garage service door, the leaks in the patio cover outside the casita, and the three scratched windows in the great room. If is further recommended that if on or before the effective date of the final Order, Respondent submits written proof that is acceptable to the Registrar that it has repaired in a professional and workmanlike manner the touch-up paint in the great room, the master bedroom, the master bathroom, and the master bedroom walk-in closet and on the garage service door, the leaks in the patio cover outside the casita, and the three scratched windows in the great room, then Respondent’s license shall not be suspended but, instead, Complainant James Bryan Ball’s Complaint in Case No. 2012- 2883 shall be closed. 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 final Order, the Registrar shall 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. 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, February 28, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s Exhibit 2 at 3. [2] Complainant’s post-hearing memorandum at 6. [3] Id. [4] See Respondent’s Exhibit 16. [5] See Respondent’s Exhibit 7. [6] See Respondent’s Exhibit 6. [7] Respondent’s Exhibit 17. [8] Respondent’s Exhibit 1 at 2. [9] Id. at 3. [10] Complainant’s post-hearing memorandum at 13, ll. 2-3. [11] See Complainant’s Exhibits 11A and 11B. [12] See Respondent’s Exhibit 12. [13] Respondent’s Exhibit 25. [14] Complainant’s post-hearing memorandum at 14, l. 23 – 15, l. 4. [15] See A.R.S. §§ 32-1151 to 32-1169. [16] 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). [17] See A.A.C. R2-19-119(B)(2). [18] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [19] 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.” [20] Webb v. Arizona Board of Medical Examiners, 202 Ariz. 555, 558 ¶ 9, 48 P.3d 505, 508 (App. 2002) (citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106 ¶ 18, 993 P.2d 1066, 1070 (App. 1999)). [21] 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.” [22] 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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