ALJDEC decisions subject to certification as final

2016A-573-ROC · Registrar of Contractors · 2016-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William D. Smith,

COMPLAINANT,

v.

Pangburn Construction Co.,

License No. B.123437-R,

RESPONDENT.

No. 2016A-573-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2016, at 8:00 a.m.

APPEARANCES: William D. Smith (“Complainant”) appeared on his own behalf; Pangburn Construction Co. (“Respondent”) appeared through Martin Pangburn (“Mr. Pangburn”), its qualifying party/officer.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about May 6, 1997, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.123437-R for residential general contracting to Respondent.

On or about February 18, 2016, Complainant filed a complaint with the Registrar against Respondent based on Respondent’s construction of the house that Complainant purchased at 1580 Audry Drive, Lot 34, in Chino Valley, Arizona 86323. According to the complaint, Complainant closed escrow on the house on February 27, 2014. The complaint alleged that the HVAC system provided insufficient air to the master bedroom, that the concrete had cracked throughout the garage, that there was a 30’ long crack in the drywall ceiling of the garage, that the ridge caps on the roof were not to code, that a wire grill was missing from the exhaust vent in the master bathroom, that ceramic tile was loose in the master bathroom and kitchen, and that the laminate flooring in the living room and dining room was chipped and damaged during installation and had ill-fitting joints.

The Registrar assigned the complaint to its Senior Investigator, Jim Dimond (“Investigator Dimond”), for investigation. Investigator Dimond performed a jobsite inspection on April 26, 2016. Respondent did not attend the jobsite inspection.

On June 8, 2016, Investigator Dimond on behalf of the Registrar issued a Directive to Respondent to perform certain corrective work on or before 5:00 p.m. on June 24, 2016, in relevant part as follows:

Item 2- Severe cracking of concrete throughout garage floor.

The panels are in excess of the ROC standard square footage allowed, panels have cracking at probable rebar locations and excessive vertical displacement is present at the a crack in the far southwest panel.

The respondent is to correct the condition in an appropriate manner.

The panel in which the complainant has constructed a store room is excluded.

Item 3- 30’ long crack in drywall ceiling in garage

The respondent is to correct the condition in an appropriate manner.

Item 5- Roofing ridge caps are not “to code” they are starter shingles.

The respondent is to correct the condition in an appropriate manner.

Item 6- Exhaust vent (master bath) is missing wire grill work.

The respondent is to correct the condition in an appropriate manner.

Item 7- Loose ceramic tile in master bath & dining area.

The respondent is to correct one tile in the master bath and the 3 tiles in front of the sliding patio door in an appropriate manner.

Item 8- Laminate flooring in living rm & dining area, where (sic) either damaged during installation or were damaged coming out of the box. Many ill fitting joints.

There is gapping, joint peaking and chipped planks. The respondent is to correct the condition in an appropriate manner.

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 matter was referred the matter to the Registrar’s Legal Department. On July 25, 2016, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke, suspend, or otherwise discipline the license under A.R.S. § 32-1154(A)(1), 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)(22).

Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that he no longer performed construction because his health was poor and that he did not attend the jobsite inspection because he was in Michigan and did not receive notice of the inspection.

An evidentiary hearing was held on October 7, 2016, via videoconference from the Registrar’s Flagstaff office. Complainant submitted five exhibits, testified on his own behalf, and presented the testimony of his wife, Lorrie Smith (“Mrs. Smith”). Mr. Pangburn testified on Respondent’s behalf and presented the testimony of Tim Peterson (“Mr. Petersen”), his partner and jobsite superintendent in the construction of the house. Investigator Dimond also testified.

/ / / /

/ / / /

Hearing Evidence

The house was a spec house that Complainant did not purchase until sometime after Respondent and Mr. Petersen constructed it.

Investigator Dimond testified that he performed a prehearing jobsite inspection on October 6, 2016. The exhaust vent in the master bathroom (Item 6 on the complaint) and the loose ceramic tile in the master bathroom and kitchen (Item 7 on the complaint) had been corrected. Complainant did not dispute his testimony that the repairs to these items were satisfactory.

Severe Cracking of Concrete throughout the Garage Floor

Investigator Dimond testified that the concrete panels in the garage floor were too large and that extensive cracking had resulted. Inspector Dimond acknowledged that Complainant had constructed a room in the garage using typical stud walls up to the ceiling, where he stored tools and Christmas decorations. Investigator Dimond explained that is why he excluded the store room from the area that Respondent was required to correct on the Directive.

Investigator Dimond opined that the storeroom may have affected the cracks in the garage under and near the area where it had been constructed, but opined that the storeroom definitely did not cause the cracks on the west end of the garage, near the garage door, where there was a very large crack.

Mr. Petersen expressed concerns about cutting through the old concrete and having to match the concrete under the storeroom without having the option of removing and replacing all the concrete with new concrete flatwork. Mr. Petersen testified it is not common to attached old and new concrete flatwork.

Complainant testified that he believed that the whole slab in the garage needed to be replaced. He did not think that the storeroom would be a problem.

The 30’ Crack in the Garage Ceiling

Investigator Dimond testified that he did not know whether the weight of the storeroom walls affected the 30’ crack in the drywall across the garage ceiling. He is not an engineer.

Investigator Dimond testified that Respondent did not perform the 1-year punch list for drywall cracks.

Mr. Petersen expressed outrage that the Directive made Respondent responsible for the 30’ crack in the garage ceiling because the garage trusses were not designed to handle the additional weight of the storeroom walls.

The Roof Ridge Caps

Investigator Dimond testified that the roof was covered in architectural dimensional asphalt shingles, but that the ridge appeared as though Respondent had used starter shingles that would normally be covered by other shingles because the shingles were not architectural dimensional shingles that matched the rest of the roof.

Investigator Dimond testified that if the roof cap shingles were starter shingles, they could not be expected to stand up to weather. In addition, the roof cap shingles appeared to have been cut from a larger shingle. Investigator Dimond testified that he did not know whether the code or the manufacturer allowed shingles for the roof ridge cap to be cut.

Mr. Pangburn testified that Respondent used 20-year 3-tab shingles that had been cut into three pieces for the roof ridge caps, not starter shingles. Mr. Pangburn testified that he did not use architectural dimensional shingles because Chino Valley is in a high wind area where gusts routinely reach 60 to 70 mph and if shingles having a high profile are used on the roof ridge cap, they are more likely to blow off. Mr. Pangburn testified roof ridge shingles with a lower profile are commonly used in areas of high wind and the manufacturer said that it would not affect the warranty.

Complainant submitted an email from Derek Wuest that provided in relevant part as follows:

In regards to a recent roof inspection [performed] at 1580 Audrey Drive, Chino Valley, AZ 86323 it was determined that the roof cap on the single roof is inconsistent with the primary roofing material. The dimensional shingles that were installed on the roof are a Gaf/Elk lifetime warranty shingle if installed as per manufacturer [’]s guidelines. The Cap that is installed on the roof is a Tamko 3 tab shingle cut into cap pieces. [T]his product has a 20 year warranty, but again must be installed as per manufacturer [’]s specifications. The proper cap for the installed roof system would be GAF/Elk Z ridge, a product that falls under the Gaf lifetime warranty guidelines.

The Laminate Flooring

Investigator Dimond testified that David Rodenkirk (“Mr. Rodenkirk”), the flooring subcontractor, attended the prehearing jobsite inspection. Mr. Rodenkirk indicated that he believed that the deficiencies in the laminate flooring were due to a manufacturing defect. Mr. Rodenkirk stated that he had contacted the manufacturer about the defect and that he was waiting for the manufacturer to respond.

Investigator Dimond testified that the laminate flooring had not been corrected.

The HVAC Air Supply to the Master Bedroom

Investigator Dimond testified that he did not require Respondent to perform any correction to the HVAC air supply in the master bedroom because the way the house was constructed, the attic was part of the building envelope and Complainant stated that he had cut the sheer knee wall above the bathroom. Investigator Dimond testified that under A.R.S. § 32-1155(C)(2), Complainant’s modification of the wall prevented the Registrar from finding that Respondent was responsible for any air flow deficiencies.

Mrs. Smith pointed out that the air flow came through the ductwork in the attic. Investigator Dimond explained that because the attic was part of the building envelope, the air flow had to have been calculated by engineers. By altering structures in the attic, which was air conditioned space beneath the wall, Complainant had altered the HVAC system.

Mr. Petersen testified that the house was an APS Energy Star and Leeds certified structure. The HVAC subcontractor, Indian Air, had been called out to the home twice and could not find anything wrong with the air flow in the master bedroom. The insulation subcontractor could not find anything wrong. When Complainant asked him to cut a hole in the sheer wall to improve air flow, he had refused because the alteration would affect the operation of the HVAC system.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license file according to the Registrar’s public website on this date. Respondent’s license was current and in good standing and there was no reported discipline against the license. This is apparently the only complaint pending against the license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

The house was substantially complete when Complainant purchased it. Therefore, Complainant did not establish that Respondent abandoned the contract, thereby furnishing cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1).

Complainant did not establish that Respondent departed from plans, specifications, or any building code in its construction of the house. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

Complainant established that Respondent’s installation of the shingles on the ridge cap on the roof did not comply with the manufacturer’s specifications, that the cement cracks in the garage exceeded the Registrar’s and industry standards, that the 30’ drywall crack in the garage ceiling exceeded the Registrar’s and industry standards, and that the laminate floor did not comply with the Registrar’s or industry standards. Therefore, Complainant did not establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainant did not establish that the air flow into the master bedroom and bathroom is insufficient.

Respondent established that it is not responsible for any air flow insufficiencies because Complainant modified the knee wall above the bathroom. Respondent also established that it is not responsible for the concrete cracks on the east side of the garage around the storeroom that Complainant constructed in the garage.

Mr. Pangburn testified that he did not receive notice of the complaint until July 2016, because he was in Michigan, but Respondent did not establish that it changed its address of record or arranged to have its mail forwarded to Michigan. Respondent also did not establish that it complied with the June 8, 2016 Directive in the workmanship noted in Conclusion of Law 6, as modified by Conclusion of Law 8. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Pangburn Construction Co.’s License No. B.123437-R shall be suspended for a period of five calendar days.

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(E).

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 Registrar’s Order, the Registrar 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 five days from the date of that certification.

Done this day, October 17, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors