ALJDEC decisions subject to certification as final
2015A-4083-ROC · Registrar of Contractors · 2016-12-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Harold E. Whitney,
COMPLAINANT,
v.
Beazer Homes Holdings Corp dba,
Beazer Homes, License No: 114625,
RESPONDENT.
No. 2015A-4083-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 5, 2016
APPEARANCES: Harold E. Whitney (Complainant) appeared on his own behalf. Beazer Homes Holding Corp dba Beazer Homes (Respondent) was represented by its authorized representative, Robert Cassata.
ADMINISTRATIVE LAW JUDGE: Suzanne Marwil
_____________________________________________________________________
Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:
FINDINGS OF FACT
Complainant is the owner/occupant of a residence located at 18289 West Marconi Lane, Surprise, Arizona 85388.
Respondent holds Arizona Contractor’s License No.114625.
On September 28, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work in constructing his home leading to, among other things, water intrusion into the garage from the main and side doors, electrical problems, roof flashing issues, problems with driveway and a loose garbage disposal.
The Registrar assigned investigator Steven Lawton to investigate the complaint. Lawton testified that he arranged to perform an inspection on November 17, 2016, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Grimm indicated that at the time of an inspection, he substantiated only the issue of water intrusion. He performed electrical tests and could not find anything wrong with the electrical wiring despite the fact that Complainant had home inspection reports that suggested there was a short present. Lawton indicated that the driveway met the minimum workmanship standards as did the roof flashing. He noted that Respondent had corrected the issue with the garbage disposal prior to his inspection.
On December 14, 2015, Lawton sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:
Correct water intrusion into the garage at the main door and the garage side door.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
The Directive specified a competition date of January 8, 2016 at 5:00 p.m.
After receiving the Directive, Complainant telephoned Lawton’s supervisor to express his dissatisfaction regarding the items that were on the complaint that were not made part of the Directive. Deering arranged for Lawton to perform a reinspection and the Registrar’s case notes read into the record at hearing indicate that Deering informed Complainant he could have the home inspector present at the reinspection to show Lawton the electrical problems he identified. Complainant declined to have his home inspector present, citing cost.
On May 26, 2016, Lawton performed the reinspection. He found no reason to add any items to Directive.
On June 13, 2016, Lawton issued a Directive containing his findings on reinspection as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on June 27, 2016.
You are hereby directed to correct the following violations by appropriate means:
1. Correct water intrusion into the garage at the main door and the garage side door. Correct by Appropriate Means.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
At some point, Respondent redid Complainant’s driveway and performed work on the roof flashing even though these items were not part of the Directive. Cassata explained that Respondent did so in an effort “to patch things up with” Complainant. Complainant said the driveway was fixed to his satisfaction, but that he believed Respondent’s efforts to repair the window flashing remained substandard.
Respondent informed Lawton at the expiration of the Directive period that it still was not in compliance on the water intrusion issue so Lawton forwarded the matter to the Registrar’s legal department for review.
On January 15, 2016, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”
Respondent also performed corrective work regarding the water intrusion in early October 2016, just prior to the October 7, 2016 hearing in this matter. Respondent had waited to perform this most recent corrective work regarding the water intrusion at Complainant’s request. The parties agreed that hearing should be reconvened after it had rained so that it could be determined if the water intrusion issue was resolved.
Hearing reconvened on December 5, 2016. Complainant testified that the water leaks he had made part of his September 2015 complaint were resolved, but that there were now a couple of new leaks that had him concerned. Complainant vehemently argued that there was an electrical problem in his master bedroom as shown by the two inspection reports. He expressed his lack of confidence in both Lawton and the Registrar.
Lawton testified that the Registrar applies minimum construction standards to determine if a violation exists and only finds violations for items it can visualize and replicate. He noted that Complainant was invited to replicate the alleged electrical problems and declined to have his home inspector do so. Lawton testified as to his experience and reiterated that both the driveway and the roof flashing met minimum construction standards.
Lawton stated that any new instances of water intrusion would need to be the subject of a new complaint.
Cassata acknowledged that the water intrusion specified in Complainant’s September 2015 complaint constituted a workmanship violation that was not corrected during the corrective period. He said that Respondent had its subcontractor correct the issue before the hearing and was only recently notified of the new leaks.
Cassata indicated that Respondent was willing to fix problems Complainant identified, but that thus far neither Respondent nor the Registrar could identify a problem with either the electrical in Complainant’s master bedroom or the roof flashing.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
Undisputed credible testimony established Respondent performed substandard work in Complainant’s home, leading to water intrusion into the garage. Respondent conceded that the water intrusion referenced in the September 2015 complaint constituted a workmanship violation. Thus, Complainant established Respondent’s work on the items specified in the Directive was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).
An A.R.S. § 32-1154(A)(22) violation is not warranted given that Respondent has diligently attempted corrective work regarding the water intrusion and has even performed work not specified in the Directive to address concerns raised by Complainant.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 2114625 for a period of one (1) day.
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, December 7, 2016.
/s/ Suzanne Marwil
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors