ORDER

2012A-4212-ROC · Registrar of Contractors · 2013-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Complainant Ron Engel had eight subpoenas or subpoenas duces tecum issued to Respondent Pebble Creek Construction Company’s corporate Quality Assurance Inspector, Matt Spina. Respondent objected to an moved to quash in their entirety six of the subpoenas and moved to quash in part a seventh subpoena. Background The issue in this case is whether Respondent violated the statute and regulation that were charged in the Registrar of Contractors’ Citation and Complaint, A.R.S. § 32-1154(A)(3) and A.A.C. R4-9-108. 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.” The two specific workmanship items on the Complaint that Complainant filed with the Registrar were (1) Siphonage between two toilets that share a common vent; and (2) Holes in decorative medallions on the exterior ends of Complainant’s residence. Complainant’s eight subpoenas sought to require Mr. Spina to attend the hearing and to provide various documents or information. Complainant did not identify Mr. Spina’s role in this matter on his subpoenas. According to Respondent, Mr. Spina attended one of the Registrar’s inspectors jobsite inspections in this matter, but was not personally involved in the construction of Complainant’s home. Respondent’s attorney informed the Administrative Law Judge (“ALJ”) at the prehearing conference held on March 1, 2013, that it did not intend to call Mr. Spina as a witness at the hearing in this matter and that, instead, Respondent’s party representative and witness would be. Robert Capraro, Respondent’s superintendent for the construction of Complainant’s home. Complainant’s request that a subpoena be issued for Mr. Capraro’s attendance at the hearing acknowledged that he attended all of the Registrar’s inspectors’ jobsite inspections. Complainant argued that the relevance of the information sought in all eight subpoenas was to show that “Respondent knew of the siphonage material issue and willfully neglected correcting it before constructing Complainant’s home . . . .” Complainant also asserted that the documents and witnesses whose identities were sought in the subpoenas would “demonstrate that Respondent constructed at least 7 of the same model homes as [Complainant’s] home and all 8 homes have the same identical material siphonage as an issue as a violation of ROC Standards because of their change in position to correct the material siphonage issue for new homes constructed after Complainant organized the 7 other owners with this same issue to pursue their complaints with Respondent.” Complainant did not allege that any of the seven other property owners’ complaints had proceeded to a hearing or trial on the merits or that any tribunal had determined that the shared vent constituted a deviation from applicable design or workmanship standards. Applicable Law A.R.S. § 41-1092.07(C) allows the ALJ to issue subpoenas to compel the attendance of witnesses and the production of documents. Complainant argues that all the evidence that he seeks is relevant and quotes the website of the Office of Administrative Hearings (“the OAH”) that “[r]elevant evidence is evidence that reasonably tends to make the existence of a fact more or less probable than it would be without the evidence.” Although A.R.S. § 41-1092.07(F)(1) allows the hearing to be conducted in an informal matter without adherence to the rules of evidence required in judicial proceedings, administrative decisions must be supported by evidence that is substantial, reliable, and probative. A.R.S. § 41-1092.07(D) allows the ALJ to exclude evidence if its probative value is outweighed by probable undue delay, waste of time, or needless presentation of cumulative evidence. A.A.C. R2-19-116 requires the ALJ to make the rulings that are necessary to prevent argumentative, repetitive, or irrelevant questioning and to expedite the examination of a witness to the extent that is consistent with the disclosure of all relevant testimony and information. Although the Arizona Rules of Evidence are not strictly followed in administrative hearings in the OAH, the rules provide guidance on the circumstances under which the ALJ may quash a subpoena because the probative value of the evidence is outweighed by undue delay or waste of time, rendering it unlikely to be given weight at the hearing. Ariz. R. of Evid. 407 provides: When, after an event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Ariz. R. Evid. 407 seeks to "‘encourage remedial measures by freeing the defendant from concern that such steps might be used against him as an admission by conduct.’"[1] "‘The limitation provided by Rule 407 is not based so much upon a lack of relevancy as it is upon the policy decision to promote changes which decrease accidents.’"[2] Ariz. R. Evid. 404(b) provides as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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Motions to Quash 1. Subpoena for Mr. Spina’s testimony at hearing Complainant’s first subpoena to Mr. Spina requested that he be required to attend the hearing and be available to testify. Respondent moved to quash the subpoena as unreasonable and oppressive because Mr. Capraro was equally able to testify as to any relevant matter and requiring “Respondent to have another employee [to be] away from work to attend the hearing is unnecessary, unreasonable and oppressive.” Complainant’s response to the motion to quash the subpoena for Mr. Spina’s testimony at the hearing did not state that he would be able to provide different or additional testimony to Mr. Capraro’s testimony about whether Respondent’s work on the two items at issue complied with the Registrar’s or industry standards. Instead, Complainant argued as follows: [O]nly [Respondent’s corporate officers] have the authority to make decisions that were made [or not made] regarding the construction of Complainant’s home which resulted in Respondent’s violations that Complainant has charged. Complainant will provide evidence and testimony [that] will demonstrate that Mr. Capraro did not have this authority which makes his testimony about whether Respondent committed the violations charged by Complainant irrelevant and Mr. Spina’s relevant.

As noted at the prehearing conference, the issue at the hearing is whether the two items of workmanship failed to comply with the Registrar’s or industry standards, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Because the testimony of the person who chose the design or the reasons for the decision is not relevant to the issue of whether the design and construction complied with applicable standards or violated the charged statute and regulation in the first instance, IT IS ORDERED quashing Complainant’s subpoena for Mr. Spina’s testimony at the hearing. 2. Subpoena to Mr. Spina to produce “contact information for the third party that Mr. Capraro told Ms. Wadlow that Respondent had look[ed] at the plans and chang[ed] the plans for new construction” As Respondent pointed out, Complainant’s second subpoena to Mr. Spina requests information, not testimony or documents. Because the procedural rules of the OAH do not allow interrogatories, Complainant’s second subpoena to Mr. Spina is not proper. In addition, it appears from the face of the subpoena that Mr. Capraro has access to this information. To the extent that this information may be marginally relevant, Complainant may ask Mr. Capraro about it at the hearing. Finally, under Ariz. R. Evid. 407, Respondent’s possible change of the design of the shared vent does not establish that the original design violated the Registrar’s or industry standards. Therefore, IT IS ORDERED granting Respondent’s motion to quash Complainant’s second subpoena to Mr. Spina. 3. Subpoena to Mr. Spina to produce written complaints submitted to Respondent by owners of homes at six specifically identified homes in Complainant’s subdivision Respondent objects to this subpoena because the only matters at issue in the hearing is whether the two workmanship issues on the Complaint that Complainant filed with the Registrar complied with the Registrar’s and industry standards, not whether Complainant’s neighbors filed similar complaints with Respondent or the Registrar. Because unadjudicated similar complaints are not relevant to the issue of whether Respondent’s design and workmanship on Complainant’s house violated the Registrar’s or industry standards in the first instance, IT IS ORDERED quashing Complainant’s third subpoena to Mr. Spina. 4. Subpoena to Mr. Spina to produce “detailed drawings of plumbing design/configuration of the powder room & 2nd bedroom bath toilets both

above the floor” for seven other houses in Complainant’s subdivision As noted above, any changes or improvements to the vent system in houses that Respondent constructed after it constructed Complainant’s house do not establish that the original design violated the Registrar’s or industry standards. Under Ariz. R. Evid. 407, this evidence is not admissible to establish vent design and construction in Complainant’s house did not comply with the Registrar’s or industry standards. To the extent that these houses have the same design as Complainant’s house, under Ariz. R. Evid. 404(b), similar alleged misconduct is not relevant to the issue of whether the misconduct occurred in the charged instance. Therefore, IT IS ORDERED quashing Complainant’s fourth subpoena to Mr. Spina. 5. Subpoena to Mr. Spina to produce “detailed drawings of the plumbing design/ configuration of the power room & 2nd bedroom bath toilets both above the floor and below the floor” for another house in Complainant’s subdivision For the reasons stated above, unadjudicated complaints about the same design or a change or improvement to the design are not relevant to the issue of whether Respondent’s design and construction of the vent in Complainant’s house complies with the Registrar’s or industry standards. Therefore, IT IS ORDERED quashing Complainant’s fifth subpoena to Mr. Spina. 6. Subpoena to Mr. Spina to produce “contact information for Respondent’s plumber who installed the plumbing for the powder room & 2nd bedroom” at another house in Complainant’s subdivision Respondent objected to this subpoena because it seeks information, not documents or testimony. Respondent also objected to the subpoena because it does not concern Complainant’s house. For the reasons stated above, unadjudicated complaints about the same design or a change or improvement to the design are not relevant to the issue of whether Respondent’s design and construction of the vent in Complainant’s house complies with the Registrar’s or industry standards. Therefore, IT IS ORDERED quashing Complainant’s sixth subpoena to Mr. Spina. 7. Subpoena to Mr. Spina to produce “all Respondent’s internal and external written communications regarding the siphonage issue such as but limited to e-mails, memos, letters correspondence with the City of Goodyear, plumbers, the third party engaged to look at plumbing plans related to all Monteras built in Pebble Creek” Respondent produced to Complainant at the prehearing conference the nonprivileged documents that related to the Complaint that he filed with the Registrar. Respondent objected to Complainant’s subpoena to the extent that it sought priviledged documents or documents that related to other houses other than Complainant’s house. For the reasons stated above, unadjudicated complaints about the same design or a change or improvement to the design are not relevant to the issue of whether Respondent’s design and construction of the vent in Complainant’s house complies with the Registrar’s or industry standards. Therefore, IT IS ORDERED quashing Complainant’s seventh subpoena to Mr. Spina to the extent that it seeks privileged communications or documents relating to properties or complaints other than Complainant’s house or the Complaint that Complainant filed with the Registrar. Done this day: March 4, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Copy mailed/e-mailed/faxed March 4, 2013 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 1700 W. Washington St., Suite 105 Phoenix, AZ 85007 Ron Engel 16488 W Windsor Ave Goodyear AZ 85395-1858 e-mail: [email redacted]

Pamela H. Gulsvig, Esq. Robson Communities 9532 E. Riggs Road Sun Lakes, AZ 85248-7463 e-mail: [email redacted]

By TMendez ----------------------- [1] Johnson v. State of Arizona, 224 Ariz. 554, 556 ¶ 9, 233 P.2d 1133, 1135 (2010) (quoting Readenour v. Marion Power Shovel, 149 Ariz. 442, 445, 719 P.2d 1058, 1061 (1986)). [2] Id. (quoting Readenour, 149 Ariz. at 446, 719 P.2d at 1062; also citing Hallmark v. Allied Prods. Corp., 132 Ariz. 434, 440, 646 P.2d 319, 325 (App. 1982) (noting the rule reflects "a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety" (quoting Fed. R. Evid. 407 advisory committee's notes)); 1 Joseph M. Livermore, et al., Arizona Practice Series: Law of Evidence § 407 (Daniel J. McAuliffe & Shirley J. Wahl eds., rev. 4th ed. 2008) ("Taking greater care, in short, ought not to be punished by adverse evidentiary consequences, and that is the proposition underlying Rule 407.")).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826