ALJDEC decisions subject to certification as final

2014A-4553-ROC · Registrar of Contractors · 2015-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2015 APPEARANCES: Diane Durbin, Complainant; Nat Clarkson, Attorney for Respondent; Terry Organ, Respondent representative; Bryce Ray, Alan Ray, Ryan Hicken, Russell Harper, Bob Mechsner, witnesses; David Sinnott, Lynn Sinnott, Ed O’Donnell, observers; Matt Gunstra, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Based on the evidence and testimony in this matter, the undersigned Administrative Law Judge hereby recommends that the Complaint and Citation in this matter be dismissed. FINDINGS OF FACT 1. Complainant contracted with Respondent for the construction of a new home. In or around November 2014, Complainant filed a complaint with the Registrar of Contractors (“ROC”) regarding various items that she argued did not meet workmanship standards. 2. After a job site inspection that took place on January 7, 2015, ROC Inspector Matt Gunstra issued a directive ordering Respondent to correct item. On February 5, 2015, he issued another directive requiring Respondent to correct 7 more items. 3. The directives ordered Respondent to correct the following items: Directive 1: 1. Roof and/or fireplace flue cap at fireplace chimney is leaking into attic and caused drywall damage to bedroom ceiling Directive 2: 1. The front entry door leaks easily at the operable center panel where it seals to the door frame and should be addressed according to manufacturer’s warranty. The interior baseboard has caulking separating due to previous water intrusion. 2. The front entry step has negative slope and drains towards the entry door. Code requires 2% slope on these surfaces. 3. The wood beams at the living room ceiling have approximately ½” gaps at the drywall and have settled or shrunk. This condition should be repaired in a manner that provides flexibility during typical roof truss movement and reduces future separation. 4. The joints between baseboard trim and corner blocks in some areas are not installed to a typical industry standard. All joints should be tight fitting. Angle cut joints at corner blocks should have butt joints and shall be replaced as necessary. 5. Code requires an attic access minimum 22” x 30” and should have a closeable lid that seals to the attic. There is an electrical wire crossing the current opening that should be moved as necessary. 6. The backflow preventer at the irrigation line emits a rattling noise during operation. This device should not typically make this noise and should be addressed according to the manufacturer’s warranty. 7. The erosion of the area at the front yard over the subsurface drain should be addressed by the contractor once in the first year. The grade has either settled over the pipe and should be re-graded or the swale is not designed to handle the volume of water moving through it and should be redesigned to prevent substantial erosion. 4. Inspector Gunstra conducted another inspection on February 18, 2015 and found that all items had been completed except for Item 4, the appearance of the baseboards as the run along the curved walls and next to the doors. He was unsure about the roof at first but a water test confirmed it was no longer leaking. 5. Complainant did not dispute that all items on the two directives were corrected except the baseboard issue and the roof. However, she also wanted to testify about the air conditioning and the configuration of a bathroom due to a framing issue. Complainant had filed another complaint with these issues but that complaint had not yet been processed by the Registrar and was not properly before the Arizona Office of Administrative Hearings. However, in the interests of expediency, Respondent waived those issues and they were included in the hearing. 6. Regarding the roof repair, Complainant was unsure if the roof will perhaps leak again someday in the future. She had consulted a contractor about the proper way to repair a leak, but she had no evidence that the roof repair was inadequate, so she was unable to meet her burden of proof on that issue. 7. Regarding the bathroom, Complainant argued that the bathroom was not configured as it was on the plans, which, she argued, was a problem that arose from the home being framed improperly. Russell Harper, the plumber, testified[1] that the room was only slightly smaller than it was on the plans, but the larger size toilet that Complainant purchased for the bathroom also caused problems for the small space. He said he talked to Complainant and her friend, who had designed the home, and they reconfigured the bathroom to what he believed was a better plan. He said this plan allowed Complainant to keep it as a ¾ bath and gave added privacy by moving the toilet and door into a position where the toilet would have been shielded from view when the door opened. He acknowledged that this plan did make the shower about 2 inches smaller. However, after agreeing to the change, and after some work had proceeding in accordance with the new plan, Complainant told him to stop. Later, she changed the room to a half bath. 8. Regarding the air conditioning, Complainant argued that she did not have a dual zone system as the plans called for. She stated that the thermostat in what was referred to as Zone 2 (encompassing 2 small bedrooms) was a “dummy thermostat”. Mr. Ryan Hicken, the HVAC professional who installed the units, testified[2] that he installed the units so as to create Zone 1, the master bedroom, and Zone 2, the 2 smaller bedrooms (and apparently another zone for the rest of the home). He said he originally understood Complainant wanted to be able to turn off the air conditioning to the 2 bedrooms when not in use. However, she called him after several months and wanted it changed. He went to the home and changed it so that the two smaller bedrooms could turn on the air conditioning independently; however, if those rooms got too much cooler than the rest of the home, the air conditioning unit could be damaged due to static resistance, so the home’s HVAC plan was to create a “dump off” area, which was the master bedroom. This is why, when Complainant had guests using the other bedrooms and they wanted to be cooler than the rest of the home, she noticed that her bedroom was getting cooler. According to Mr. Hicken, Zone 2 was not overriding the Zone 1 thermostat as Complainant thought. He said she still has separately controlled zones as the contract calls for. 9. Regarding the baseboards, photos of the work show that it was done in an unusual manner where the sides of the baseboards near the doors was cut at an angle and then abutted next to another baseboard with a squared edge, leaving an almost v-shaped gap facing the room. Inspector Complainant testified that she has never accepted the appearance of the baseboards. Respondent offered the testimony of Mr. Bob Mechsner, an experienced contractor and former Chief Inspector for the Registrar. He testified that the baseboards would not be acceptable if Respondent had installed them without specific instructions to do it that way from the Complainant. However, he also testified that the Registrar has always accepted a customer’s right to have their home the way they want. Consequently, there are times when an otherwise unacceptable appearance is acceptable because it was done to the customer’s specifications. 10. Complainant testified that she has never accepted the appearance of the baseboards. However, the question in this case is not whether Complainant accepted the appearance of the baseboards. Rather, the question is whether she instructed Respondent to make the baseboards the way they did. Complainant should be allowed to have licensed contractors carry out in a professional manner any building ideas that she may have for her own home. However, if the work doesn’t look as attractive as she envisioned when she directed Respondent to make it, it is not a violation for the contractor to have followed her directions. 11. In this case, Mr. Bryce Ray, a trim carpenter, installed the baseboards. He has a history of installing baseboards in 100s of homes. He testified[3] that when he first installed them, he showed Complainant two different ways that the baseboards could be treated. She chose the one that involved mitering the side of the last baseboard to a 45 degree angle and leaving a strip of drywall next to the door jamb. Mr. Bryce Ray testified that 2 to 3 weeks after he did the installation, he was at the home and Complainant told him that she wanted cornerblocks installed next to the jambs. He said he explained that if she did this, the cornerblocks would interfere with the opening of the door. However, Complainant wanted it done and she made a change order to do so.[4] Mr. Ray and Complainant discussed extensively her choice to keep the mitered baseboard and install the cornerblocks next to it (leaving a gap). Complainant would need to do another change order, thereby paying more, to removing the mitered boards and then stain and install boards that would be flush with the side of the cornerblocks, but Complainant did not want to do this. 12. Mr. Alan Ray, a trim and framing carpenter, testified[5] that he was not present when Complainant chose the first baseboard installation. However, when Complainant was changing them, he held the cornerblock up to a mitered baseboard to show her the gap that would result if she did not agree to replace the mitered boards. She said it did not bother her. Mr. Alan Ray said it did bother him and he had never done it that way, but he did it that way because that is what Complainant requested. After it was completed, he did not know Complainant was unhappy with it until Respondent received the complaint.[6] In fact, Complainant was proud because Mr. Alan Ray had said you can’t put cornerblocks on that way and she had proven that it could be done. 13. Respondent called Complainant as a witness.[7] She denied saying that the appearance of the cornerblock next to the mitered baseboard didn’t bother her. However, when confronted with the issue in writing, she said that she just interpreted it as Respondent trying to talk her out of adding the cornerblocks. However, the email[8] specifically states that “the 45 [degree] cut will be on the other side of the corner block”. The writing is clear. The testimony of Mr. Bryce Ray and Mr. Alan Ray is clear. Complainant clearly was told that the result of her changes would look just as it did. Her denials now that she has seen the results and decided she doesn’t like the appearance cannot be considered credible in the face of the overwhelming evidence to the contrary. 14. Respondent called Mr. Terry Organ, Respondent’s Qualifying Party and the general contractor that built Complainant’s home, to testify.[9] He testified that he offered to change the framing of the bathroom to conform to the plans for no charge, but Complainant declined. He said there were no complaints after the bathroom was completed. Regarding the baseboards, he said it was clearly understood that Complainant would have to pay more to have the baseboards cut properly to add the cornerblocks. He said it would have cost Complainant about $500 or less to remove the mitered baseboards at that time because the work was still incomplete at the time. The baseboards had not yet been stained or caulked into place. But he didn’t look into it because he wasn’t asked to give a price on it. After the baseboards were done, Complainant did not say it was done wrong. He did not know she wasn’t happy with it until he got the complaint. At this point, he said, it would cost at least $2,000 to $3,000 to change them, perhaps more. 15. Mr. Organ also testified that Respondent repaired the roof and it does not leak. He testified about repairing the leaking door, which was a manufacturer’s issue, but it was not disputed that the door has been corrected. 16. Mr. Organ testified that Complainant has improperly withheld $23,942.00 from the amount she is responsible to pay. He said this is aside from a $10,000 time delay reduction that she was entitled to and aside from $8,997.00 in change orders that Respondent agreed to pay for. He said the only reason Complainant gave for withholding the additional $23,042.00 was that Respondent “forced” her to change the bathroom lay- out. He said he has corrected all of the issues in the complaint except for the baseboards and the only reason he didn’t change the baseboards was because they were done to Complainant’s specifications. 17. Complainant testified on rebuttal[10] that her plans had been approved and stamped by an engineer and she did not approve any changes to the framing. She told a story about an issue that occurred with her kitchen cabinets; however, the complaint did not include this and the Administrative Law Judge finds that it is not within the jurisdiction of the hearing to consider it. She said she withheld the additional money from Respondent because the home was not as she specified. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 1. The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (22). 2. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet workmanship standards in the projects they undertake. A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 4. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 5. In this case, the Complainant has not established grounds for disciplining Respondent’s license in this matter. 6. Although the Registrar’s Directive identified some work that needed correction, Respondent did complete the corrective work in a manner that was found by the Registrar’s inspector to meet workmanship standards. This includes the baseboards, which were completed in accordance with Complainant’s instructions. Although the baseboards are unusual looking and Complainant does not like them, the greater weight of the evidence established that she received what she requested and paid for. As for the additional items that Respondent agreed to address at hearing, Complainant failed to establish any violations pertaining to the bathroom framing because Respondent’s evidence credibly established that Respondent offered to reframe the bathroom, because Respondent could have modified the bathroom to an acceptable lay-out that would not have required Complainant to have a half bath instead of the ¾ bath, and because Complainant chose to take out the shower. Complainant also failed to establish any violations pertaining to the HVAC because Complainant has received what was called for in the contract and Complainant failed to establish that the plans called for zones that were so independent of each other that no dump off area would be needed. RECOMMENDED DECISION Based on the foregoing, it is hereby recommended that the Citation in this matter, together with the Complaint upon which it is based, be dismissed in its entirety with prejudice and that Complainant’s amended complaint be dismissed insofar as it pertains to the HVAC and the bathroom because Complainant has already had the opportunity to have a hearing on those issues and they should be considered res judicata.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification. Done this day, December 4, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Mr. Harper’s testimony is found in the hearing record from approximately 1:54:00 to 2:15:00. [2] Mr. Hicken’s testimony is found from approximately 1:35:30 to 1:53:00. [3] Mr. Bryce Ray’s testimony is found from approximately 2:15:30 to 2:31:40. [4] Exhibit M. [5] Mr. Alan Ray’s testimony is found from approximately 2:32:00 to 2:38:00. [6] See Exhibit K, a punch list that simply says to complete the installation and nothing about changing them. [7] Complainant’s testimony as Respondent’s witness is found from approximately 2:38:30 to 3:17:00. [8] Exhibit J. [9] Mr. Organ’s testimony is found from approximately 3:17:40 to 3:34:55. [10] Complainant’s rebuttal testimony is found from approximately 3:35:00 to 3:39:35.

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