ALJDEC decisions subject to certification as final
2017A-695-ROC · Registrar of Contractors · 2018-06-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Charley Dale Spohn
COMPLAINANT
-v-
Fox Canyon Builders, LLC
License No(s). B.295452-R
RESPONDENT
No. 2017A-695-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 2, 2017 and April 24, 2018; the record was held open until May 16, 2018 for the sole purpose of receiving written closing arguments.
APPEARANCES: Jeanna Nash, Esq. appeared on behalf of Complainant Charley Dale Spohn. Brent Bryson, Esq. appeared on behalf of Respondent Fox Canyon Builders, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On October 7, 2017, the Registrar of Contractors, (“Registrar”), issued a
Notice of Hearing setting the above-captioned matter for hearing on November 2, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Fox Canyon Builders, LLC (“Fox Canyon Builders”) holds
license number B.295452-R issued by the Registrar.
Blane Wilcock is Fox Canyon Builder’s qualifying party.
The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Fox Canyon Builders may
have violated Ariz. Rev. Stat. section 32-1154(A)(3), (12), and (22). The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Fox Canyon Builders’s license.
6. Fox Canyon Builders built a home for Fox Canyon, LLC located at 151 North Canyon Loop, Show Low, Arizona 85901.
7. In 2015, Complainant Charles Daley Spohn purchased the home from Fox Canyon, LLC and moved into the home.
8. On or about February 6, 2017, Mr. Spohn filed a Complaint with the Registrar alleging poor work on the part of Fox Canyon Builders.
9. On or about February 13, 2017, Mr. Spohn filed an addendum to the Complaint citing additional deficiencies.
10. On or about March 6, 2017, Registrar Investigator Chris Allison conducted
a jobsite inspection. At the jobsite inspection, Investigator Alison noted that the exhaust vent located in the attic space was disconnected. Mr. Spohn informed Investigator Allison that he was poisoned from carbon monoxide approximately 4-5 weeks prior.
11. On or about April 6, 2017, Investigator Allison conducted a second jobsite inspection. Complainant submitted an evaluation to Investigator Allison from a registered engineer who opined that the damage in the home was due to the slab sinking. Fox Canyon Builders insisted that the trusses expanded and contracted due to the disconnected vent pipe in the attic for the fireplace. Fox Canyon Builders alleged that there were hot gasses going into the attic space.
12. On April 28, 2017, Investigator Allison issued a Directive. The Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Item 1 – Kitchen Counters
Counter tops have a gap in joints in excess of 1/16”. Correct by appropriate me any
Item 2 – Interior of walls
Walls throughout the home have cracks in drywall, and are separating from the ceiling and floor. Correct by appropriate means.
Item 3 – Floor
Floor has hallowed spots underneath in the Den, Hallway, Pantry, and bedrooms. Correct by appropriate means.
Item 4 – Garage
The garage floor has a hump and negative slope. Correct by appropriate means.
Item 5 – Flatwork near front entry
Flat work that was removed and replaced by once by Respondent does not meet the 2% Slope required by code. Correct by appropriate means.
Item 6 – Floor buckling in Living room
The wood floor is bucking in living room by side window. Respondent agreed to correct. Correct by appropriate means.
15. The deadline for compliance under the Directive was July 12, 2017.
16. On or about June 9, 2017, Investigator Allison conducted a jobsite
inspection regarding Complainant’s addendum. During the June 9, 2017 jobsite inspection, Investigator Allison substantiated certain items in the Complaint. Investigator Allison also unsubstantiated other complaint items. Additionally, he found that that some complaint items fell outside the two year jurisdiction of the Registrar.
17. Fox Canyon Builders performed corrective work to Mr. Spohn’s home
during the time period for compliance under the Directive.
18. On July 20, 2017, Investigator Chris Allison conducted a compliance job site inspection. Investigator Allison found that Fox Canyon Builders complied with items 1, 5, and 6 of the Directive. Investigator Allison found that Fox Canyon Builders failed to correct items 2, 3, and 4 by appropriate means.
19. On August 7, 2017, the Registrar issued a Citation against Fox Canyon Builders alleging that it violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. sections 32-1154(A)(12) and (22).
20. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
21. At hearing, Mr. Spohn contended that Fox Canyon Builders performed poor work when it constructed his home.
22. Fox Canyon Builders contended that the deficiencies in Mr. Spohn’s home were caused by the additional changes that Mr. Spohn made to his property after purchasing the home, including installing a fireplace with a mantle and enclosing a porch. Fox Canyon Builders contended that it substantially complied with the Directive. Fox Canyon Builders contended that Mr. Spohn believes that the only way to correct the problems with the home is to tear it down to the ground or repair the foundation.
23. Fox Canyon Builders contended that the problems in Mr. Spohn’s home are attributable to truss uplift and Mr. Spohn’s excessive watering of his front yard.
25. Mr. Spohn contended that the poor foundation is the cause of the defects in the Spohn’s home. Mr. Spohn also contended that the foundation should have been able to handle the weight of the fireplace which had expanding soils beneath the home. Mr. Spohn’s expert witness structural engineer Rick Kaiser, geotechnical engineer Curt Peterson and Pat Oekerman testified that trust uplift was not the cause of the foundation problems at Mr. Spohn’s home. They also opined that excessive watering of the front lawn could not explain the lifting of the foundation and the expansion of the soil around the home.
27. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 5, 2018, there is only one open complaint against Fox Canyon Builders’s license. The Registrar has never before taken disciplinary action against Fox Canyon Builders’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The preponderance of the evidence does not show that the deficiencies in MR. Spohn’s home were caused by the installation of the fireplace and mantle or by overwatering of the lawn.
The preponderance of the evidence shows that the issues found by Investigator Allison constituted workmanship issues with the construction of Mr. Spohn’s home. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
The preponderance of the evidence shows that Respondent failed to correct items 2, 3 and 4 of the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence does not show that Fox Canyon
Builders violated A.R.S. § 32-1158(B). There was no evidence presented at hearing that Fox Canyon Builders and Mr. Spohn entered into a contract. Mr. Spohn purchased the home from Fox Canyon, LLC after Fox Canyon Builders built the home for Fox Canyon, LLC.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Fox Canyon Builders, LLC’s License No. B.295452-R for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 final 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.
Done this day, June 5, 2018
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors