ALJDEC decisions subject to certification as final

2017A-873-CHC-ROC · Registrar of Contractors · 2017-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Allen Yant,

COMPLAINANT,

v.

Eternity Homes LLC,

License No. KB-2.183637-D,

RESPONDENT.

No. 2017A-873-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 21, 2017, at 1:00 p.m.

APPEARANCES: Gregory Allen Yant (“Complainant”) was represented by Tony S. Cullum, Esq.; Eternity Homes LLC (“Respondent”) was represented by Nicholas Dale Patton, Esq., Moore Law Firm PLLC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about March 16, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.183637-D for dual residential and small commercial contracting to Respondent.

On or about February 14, 2017, Complainant filed his third complaint with the Registrar against Respondent alleging approximately 33 specific items of poor workmanship in Respondent’s construction of Complainant’s house at 3335 Hilltop Drive, Lakeside, Arizona 85929. According to the complaint, the contract date was July 8, 2014, and Complainant and his family moved into the house on December 22, 2016.

On or about March 3, 2017, Complainant amended the complaint to allege additional items of poor workmanship.

The Registrar assigned the complaint to its Investigator, Chris Allison, for investigation. Investigator Allison performed a jobsite inspection on March 20, 2017. On March 27, 2017, Investigator Allison issued a directive to Respondent to repair 16 items on Complainant’s complaint and amended complaint on or before 5:00 p.m. on April 27, 2017, including Item 11, in relevant part as follows:

Item 11 – Plans & Specifications

Guard rail of stairs at front entry is not firm. Railing should be firm [and] able to withstand 200 Lbs. force per [International Residential Code (“IRC”)]. Correct by appropriate means.

The parties agree that Respondent corrected the other 15 items on the directive but that it did not attempt to correct Item 11. Investigator Allison referred the complaint to the Registrar’s Legal Department.

On May 9, 2017, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/managing member Chris Zampedri filed a timely written answer to the Citation, stating that the guardrail was not under warranty because it had been installed per the manufacturer’s specifications and that the guardrail was loose because it had been excessively shaken.

An evidentiary hearing was held on July 21, 2017, via videoconference from the Registrar’s Flagstaff office on Item 11 on the directive. Complainant testified and submitted seven exhibits. Respondent presented Mr. Zampedri’s testimony and submitted three exhibits. Investigator Allison also testified.

Hearing Evidence

Investigator Allison testified that he leaned on the stair rail and that it was wobbly. The insecure railing could be a safety issue. Investigator Allison opined that the stair railing still did not comply with the IRC or the Registrar’s workmanship standards.

Investigator Allison acknowledged that he did not measure the weight that the rail could hold, even though the IRC specified that it withstand 200 lbs.

Investigator Allison acknowledged that he did not inspect the newel post or stair railing when Respondent first built the house. Investigator Allison acknowledged that Mr. Zampedri had taken him to another house in Lakeside that had an identical newel post and stair railing that was not loose.

Complainant testified that five of his six children still live at home, including the youngest, who is five years old and has been diagnosed with Down’s syndrome. Complainant acknowledged that his family now lives in Indiana due to the hostile environment in Arizona.

Mr. Zampedri testified that Respondent installed the newel post according to the manufacturer’s specifications. Respondent submitted the manufacturer’s instructions and a You-Tube video of a newel post being installed.

Mr. Zampedri testified that the county building inspector inspected the newel post before the certificate of occupancy was issued and that building inspectors pay particular attention to construction that could pose a life safety issue, such as a handrail. Mr. Zampedri noted that the house passed the county’s inspection.

Complainant testified that the newel post and stair railing has been loose since Respondent installed it and has gotten looser over time. Complainant testified that in August 2016, his wife complained to Respondent and that in the fall of 2016, it put four screws in the newel post to better secure it. Complainant testified that the screws did not correct the newel post; it just continued to get more wobbly.

Mr. Zampedri testified that the first time he heard about problems with the newel post was six months after Complainant and his family moved into the house. He testified that he put in six additional screws as a courtesy and that the newel post was sturdy when he left.

Complainant submitted a video of the newel post that showed that it could be easily moved and photographs that showed a 1/8” or 1⁄4” gap at the bottom of the newel post where it met the floor.

Mr. Zampedri testified that when the house was finished, the newel post was sturdy. Respondent submitted photographs that showed that the newel post was firmly affixed to the floor had showed no gap. Mr. Zampedri testified that he took the photographs when Respondent finished construction to other potential customers.

Mr. Zampedri testified that a family has lived in the house that Respondent constructed that had an identical newel post that he showed Complainant before Respondent contracted to construct Complainant’s house. Mr. Zampedri testified that after four years, the newel post on the stair landing was still sturdy and firmly affixed to the floor. Mr. Zampedri testified that Respondent installed the newel post in Complainant’s home in the same manner.

Complainant denied that his family had damaged the newel post. He testified that the newel post was wobbly when his family moved into the house.

Mr. Zampedri testified that while he was at the house, he saw Complainant’s youngest son grab the wrought iron stair railing and rock on the bannister. Mr. Zampedri testified that repeated rocking of the bannister by a child could cause the newel post to become loose.

Mr. Zampedri testified that Complainant used a dehumidifier in the house, which could have caused the different species of wood on the floor, newel post sleeve, and underlying post to shrink at different rates, causing the newel post to become loose.

Complainant submitted a handwritten estimate in the amount of $1,840.00 from Elite Builders to “redo misc. wood int. trim & re anchor railing at stairs.”

Mr. Zampedri testified he offered Complainant the amount of Elite Builders’ estimate to avoid the hearing, but that Complainant had not accepted his offer. Mr. Zampedri testified that even though he did not think that Respondent was responsible for the newel post, going to hearing was costing Respondent money.

Complainant testified that Elite Builders had told him that if the floor was damaged beneath the newel post, the cost of the repair could more than double, for approximately $2,300.00 to $5,000.00.

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 factors in mitigation of the penalty and 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 newel post is loose. Investigator Allison credibly testified that the newel post and railing did not comply with the IRC.

The newel post and railing passed the county building inspector’s inspection before the certificate of occupancy was issued. The photographs that Mr. Zampedri took after Respondent completed construction showed the post firmly affixed to the floor with no gap. Complainant did not include the loose newel post in either of the two earlier complaints, even though Complainant testified that newel post has always been loose and caused him concern for his family’s safety. On this record, Respondent established that it is more likely than not that events occurred after Respondent installed the newel post to cause the newel post to loosen. 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, or 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, Complainant Gregory Allen Yant’s complaint in Case No. 2017-873 against Respondent Eternity Homes LLC’s License No. KB-2.183637-D shall 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 will be five days from the date of that certification.

Done this day, August 1, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors