ALJDEC decisions subject to certification as final

2017A-2098-CHC-ROC · Registrar of Contractors · 2017-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James R Bower,

COMPLAINANT,

v.

William Lyon Homes Inc.

License No: 080777

RESPONDENT.

__________________________________

Jarrod Adam Martin,

COMPLAINANT,

v.

William Lyon Homes Inc.

License No: 080777

RESPONDENT.

No. 2017A-1231-CHC-ROC and

2017A-2098-CHC-ROC

(Consolidated)

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 14, 2017 @ 8:30 AM

APPEARANCES: James and Anne Bower (“Complainants1”); Bryan Cazier (“Respondent Cazier” for William Lyon Homes, Inc.); Greg Veros (“Respondent Veros” for William Lyon Homes, Inc.); Marcus Tappe (“Respondent’s Counsel”); Timothy Pennington (“Investigator Pennington” for the Registrar of Contractors [ROC]); and Michael Scanlon (ROC Observing).

NON-APPEARANCE: Jarrod Adam Martin (“Complainant2”)

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Rule 4-9-108, “minimum construction standards” of the Arizona Administrative Code (“AAC”), and thereby of Arizona Revised Statutes (“A.R.S.”) § 32-1154 (A)(3) and A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action without valid justification.).

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar” or “ROC”) issued License No. B-080777.R to Respondent, William Lyon Homes, Inc.. Respondent’s address of record is 8840 East Chaparral Road, Suite 200, Scottsdale, Arizona 85250-2613.

Between March 6, 2017 and April 20, 2017, the Registrar received two complaints from two (2) homeowners with whom Respondent had contracted for a new home purchase.

On June 23, 2017, the Registrar consolidated matter nos. 2017A-2098-CHC-ROC with 2017A-1231-CHC-ROC, in its Request for Hearing sent to the Office of Administrative Hearings.

2017A-2098-CHC-ROC

Jarrod Adam Martin

Homeowner Jarrod Adam Martin residing at 12046 West Hide Trail, Peoria, Arizona 85383, filed his Complaint on or about April 20, 2017, alleging poor workmanship. Complainant2 specifically alleged, “unable to use fridge due to design flaw. No protection around water pipes, botted too tight to frame.”

Respondent’s Counsel submitted a Reply to the Complaint on May 2, 2017, deny all allegations against Respondent. The Registrar’s Investigator conducted its Jobsite Inspection on May 17, 2017, and observed the following:

Fridge drawer opens fully but cannot be removed as intended due to design flaw.

Door opens against the counter and does not open fully

Left side door opens fully

Right side door does not open fully

On May 17, 2017, the Registrar’s Investigator issued a Written Directive setting forth a compliance date of June 3, 2017 to remedy the following, “Unable to use fridge as intended due to design flaw. Door on the left does not open fully to allow the drawers to be pulled out to clean. The left door hits the counter when opened.”

A Citation was issued on June 8, 2017, citing, Charge 1: 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); and Charge 2: A violation of A.R.S. §32-1154(A)(22).

Respondent’s Counsel filed a Written Answer to Citation on June 21, 2017.

On June 27, 2017, A Notice of Hearing was mailed to Jarrod Adam Martin at 12046 W Hide Trl, Peoria, AZ 85383-5843, and Respondent’s Counsel and Respondent at its address of record noticing a Hearing upon the charges made in the Citation and Complaint will be held at the Office of Administrative Hearing in Phoenix, Arizona, on July 14, 2017, at 8:30 AM.

Complainant, Jerrod Adam Martin, failed to appear at the hearing.

2017A-1231-CHC-ROC

James R. Bower

Homeowner James R. Bower residing at 12042 West Hide Trail, Peoria, Arizona 85383, filed his Complainant on or about March 6, 2017, alleging space planning. Complainant1 alleged, in part, “William Lyon as an incentive to buy their new home provided several new appliances. The planned space for the double door refrigerator freezer is where my complainant arises. Placing the refrigerator where they did in this new construction prohibits to gain full access to the freezer unit. The door handle on the freezer hits the counter top thereby not allowing full use of the pullout freezers and shelfs in the freezer”

Respondent’s Counsel submitted a Reply to the Complaint on March 21, 2017. In its response, Respondent’s Counsel referenced a prior complaint filed by Complainants1, on or about August 16, 2017, Docket No. 2016A-3062.ROC, against RCC Holdings, LLC, DBA Primera, alleging that the “the (refrigerator) door is blocked from fully opening because not enough space was allotted in the corner planned placement” and “the refrigerator door opens and hits the fascia of the cabinets to the right.” At that time, the Registrar dismissed the Complainant stating “the Registrar received and investigated your complaint. The Registrar determined that there is not sufficient evidence to find that the Respondent failed to meet minimum construction standards. Therefore, the Registrar will not issue a citation in this matter.” Respondent’s Counsel asserted res judicata and Collateral Estoppel to this Complaint on the grounds that, among other things, William Lyon was a privy for Primera.

The Registrar’s Investigator conducted its Jobsite Inspection on March 28, 2017. Complainant James R. Bower; and for Respondent, Victor Osborn and Charity Macmillian and Attorney Chris Willaby were present at this inspection. The Registrar’s Investigator noted the following observation:

“The home is built in a subdivision. The complainants picked out the model, and the floor plan they wanted from viewing the model home. The home is built per plan, and signed off on by the local building department. There is a 1” difference between the model and the home in question from the fridge to the wall on the left when facing the fridge. The problem is a design issue. The door cannot open fully, and to allow the drawers inside to be removed without pulling the unit out”

On March 29, 2017, the Registrar’s Investigator issued a Written Directive setting forth a compliance date of April 17, 2017 to remedy the following, “1. William Lyon as an incentive to buy their new home. Provided several new appliances the planned space for the double door refrigerator freezer is where my complainant arises. 2. Placing the refrigerator where they did in this Construction prohibits the opening of the freezer side door to gain full access to the freezer unit. The door handle of the freezer hits the counter top there by not allowing full use of the pullout drawers and shelfs in the freezer.”

Respondent’s Counsel filed a Memorandum of Points and Authorities on April 14, 2017, disputing the Directive as follows: (1) the Complaint is barred by the doctrines of Res Judicata and Collateral Estoppel; and, in addition, that “(2) Licensee met all workmanship standards in compliance with A.A.C. R-4-9-108,” in support of its position that Licensee built the home, including the planned space for the placement of a refrigerator/freezer in accordance with the approved plans and specifications,” and “there is no requirement under any prevailing authority, building code or local building practices requiring a builder to construct the planned space for the placement of a refrigerator/freezer to accommodate a specific appliance brand or model number.”

A Citation issued on April 26, 2017, citing, Charge 1u: 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); and Charge 2: A violation of A.R.S. §32-1154(A)(22).

On or about May 11, 2017, Respondent’s Counsel filed its Written Answer to Citation and Complainant.

On May 27, 2017, A Notice of Hearing was mailed to James R. Bower at 12042 W Hide Trl, Peoria, AZ 85383-5843, and Respondent’s Counsel and Respondent at its address of record noticing that a Hearing upon the charges made in the Citation and Complaint will be held at the Office of Administrative Hearing in Phoenix, Arizona, on July 14, 2017, at 8:30 AM.

On June 27, 2017, at 10:00 AM, the parties participated in an informal settlement conference.

HEARING EVIDENCE

An evidentiary hearing was held on July 14, 2017. Complainant2 failed to appear at the hearing. Complainant 2 did not request to appear telephonically and did not request that the hearing be continued. Complainant2 did not appear, through an authorized member or attorney, and did not contact the OAH to request further delay. Consequently, Complainant 2 did not present any testimony or evidence,

Investigator Pennington conceded that the original complaint against the cabinet installer was closed. He testified that he conducted the investigation at the Bower’s property leading to the Citation issued on April 26, 2017, against Respondent, and that he conducted a prehearing inspection on July 11, 2017, and found no changes.

Investigator Pennington did not know the model number of the refrigerator appliance. He further stated that the crisper drawers do come out to a normal stopping point. He did not test to see if the refrigerator was on wheels to allow Complainants1 access to remove the drawers for cleaning and to get behind the refrigerator to clean the coils.

Respondent admitted into evidence Workmanship Standards for Licensed Contractors manual dated June 2006, and questioned Investigator Pennington on whether there is a workmanship standard in the manual addressing the issue of appliance placement. Investigator Pennington could not cite any specific workmanship standard and did credibly testified that he was on the fence when investigating this complaint but wanted to allow the Complainants their day in court.

Investigator Pennington was asked by the tribunal if Cabinets and Vanities found on page 4 would be relevant to refrigerators to which the standard addresses doors, drawers and other operating parts and functions of cabinets.

Respondent also admitted into evidence product information identifying the refrigerator in question as the Kitchen Aid KRSC503E Model Size 22.7. Investigator Pennington admitted the product information sheet appears to be representative of the refrigerator appliance in question. Respondent pointed to the dimension requirements for the cabinet width of 35 3⁄4 inch The location requirements for the product also state, “normal minimum cabinet cut-out width required for product installation is 36”. However, “if the product is placed against an extended wall and the ability to remove the crisper pans is desired, an additional 18” of cabinet width is required.” Investigator Pennington testified that the cut-out width exceeded 36 inches, and stated there is no requirement that the crisper drawers need to be removed.

Complainant testified that the refrigerator door is being damaged because it slams into the granite counter. He also testified that the Registrar did not find any workmanship issues in response to their August 26, 2016 complaint but that the second complaint was against builder for a design flaw. He further stated that the particular refrigerator was an incentive to purchase the new home, and that the specific refrigerator design was essential to their acceptance because Complainants1 wanted the double, side by side doors with the automatic ice maker.

Respondent Cazier testified that the sales division is separate from the building division. He also stated that when drafting the plans, they select the best location for placement of appliances and cabinets, and that this particular refrigerator opens more than 90 degrees which makes it fully functional for daily use. He further stated that buyers have the option to purchase their own appliances. Respondent Cazier testified that if a homeowner does not like the impact, they have options to purchase bumpers, place pin door locks to allow the door to open so far, or could buy a one door refrigerator.

Complainant asked Respondent Cazier if he did a physical walk through to which he replied no. Respondent Cazier testified that three (3) municipalities approved the plans, and that the city does a final walk-through before signing off.

Respondent testified that they made a good faith offer to replace the refrigerator with a different model that would remedy the alleged issue but that Complainant rejected that offer as they want that specific Kitchen Aid KRSC403E model. Complainant asserted they would like the housing (framing) for the refrigerator to be reconstructed to accommodate that particular model refrigerator. Respondent replied that would require moving the water line, electrical, change out tiles, and other measures when the existing refrigerator is functional.

Complainant argued in his closing that it is common sense that a homeowner should be able to pull out the drawers to clean for food safety. Also, the potential damage if the handle hits the granite.

Respondent’s Counsel argued that Respondent takes issues impacting their license as a serious matter, and that in this instance the issue is not one of workmanship standards but rather consumer preference.

While Complainants1 stood firm on asserting that this particular refrigerator model was essential and that Respondent needs to reframe the refrigerator housing for placement of this particular refrigerator model, the evidence at hearing showed that Respondent installed this particular refrigerator model in compliance with the manufacturer’s product information dimensions pertaining to width, and that the doors open at a 90 degree angle, as required. Investigator Pennington also testified that the crisper drawers do come out to a normal stopping point, and he was not able to pinpoint any specific Workmanship Standard set forth in the Licensed Contractors manual that would require builders to incorporate framing for this refrigerator remodel to allow full removal of crisper drawers. Additionally, Respondent Cazier testified that the doors open 90 degrees as set forth in the appliance manufacturer’s specifications and there was no other evidence or testimony presented to refute that assertion.

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 that Respondent housed the appliance in accordance with manufacturer specifications. Therefore, Complainant did not establish that Respondent’s work, as 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 there is no finding that poor workmanship deficiencies existed, even though Respondent made good faith efforts to take corrective action in the interest of consumer relations.

Investigator Pennington credibly testified that the crisper drawers reach a normal stopping point and was unable to cite any workmanship standard that requires a contractor to defer from the manufacturer specifications for appliance installation.

The preponderance of the evidence did not establish that Respondent failed to build an adequate frame to house a refrigerator appliance that would result in poor workmanship standards. This Tribunal concludes that Respondent did not violate the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

Additionally, this tribunal finds that Complainant Jarrod Adam Martin’s did not meet the burden to present evidence in support of the complaint by his failure to appear at the hearing. See A.A.C. R2-19-119.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Citation Case No. 2017A-1231-CHC-ROC [Root] and its consolidated case 2017A-2098-CHC-ROC be dismissed.

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 is forty days after the date of that certification.

Done this day, August 3, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors