ALJDEC decisions subject to certification as final

2018A-05463-ROC · Registrar of Contractors · 2019-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 29, 2019, at 8:30 a.m. and May 15, 2019, at 1:00 p.m. APPEARANCES: Melody Johnson (“Complainant”) was represented by Cody B. Larson, Esq., Waterfall, Economidis, Caldwell, Hanshaw & Vilamana, P.C.; Wachs Construction Co. Inc. (“Respondent”) was represented by Ryan P. Toftoy, Esq., Holloway, Odegard & Kelly, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about October 20, 1977, the Registrar issued License No. ROC 046528, Class B for residential general contracting to Respondent.[1] Respondent’s license became inactive on February 27, 2018. 2. On or about November 13, 2018, Complainant filed a complaint with the Registrar that alleged that Respondent had performed poor work on its contract to build Complainant’s house at 2601 E. Calle Sin Ruido, Tucson, Arizona 85718.[2] According to the complaint, Respondent had completed work on May 30, 2017, and Complainant and her husband moved into the house on July 1, 2017. The contract amount was $2,081,650 and Respondent had been paid $2.2 million. 3. Complainant made eleven specific items of complaint, as follows: 1. Respondent failed to construct the driveway according to plan by not constructing it wide enough, which resulted in delivery trucks and larger vehicles getting stuck; 2. Respondent had purchased and installed artisan tile in the master bathroom, laundry room, and guest bathrooms that was scuffed and damaged; 3. Respondent had failed to install the pressure regulator booster pump for the water system that the plans required for when additional homes were constructed in the area; 4. Respondent had failed to construct a screen wall around the exterior air conditioners that the plans required; 5. Respondent had failed to construct a brick veneer retaining wall along the driveway that the plans required and had failed to credit Complainant for the $25,000 that the wall would have cost; 6. Respondent failed to refund approximately $35,000 to Complainant for reconciliation, which the contract required; 7. Respondent had improperly installed a water filtration system, which resulted in charcoal residue being present in the water when the taps were turned on; 8. In the southeast patio/barbeque area, (a) paint was peeling off the barbeque hood and surround; (b) The patio lacked an adequate slope for drainage and, as a result, flooded when it rained; and (c) The wrought iron gate was scratched; 9. Respondent had failed to repair the window in the master bedroom that did not latch and another window whose molding had detached; 10. Respondent had failed to provide warranty information for the compressor; 11. Because Complainant and her husband were “persons injured,” they were entitled to the maximum payout from the Residential Contractors’ Recovery Fund. 4. The Registrar assigned the complaint to its Investigator, Mike Springer, for investigation. Investigator Springer performed a jobsite inspection on November 29, 2018, which both parties attended. 5. On December 5, 2018, Investigator Springer on behalf of the Registrar issued a directive to Respondent to repair certain items on Complainant’s’ complaint on or before 5:00 p.m. on December 27, 2018, in relevant part as follows: Complaint Item 1: Contractor materially deviated from the plans and specifications with the construction of the driveway. As a consequence, delivery trucks and larger vehicles are unable to traverse the driveway without causing damage to the roadway. • Driveway width to be 14’

Complaint Item [3]: The plans and specifications required the Contractor to supply, as part of the contract price, a pressure regulator valve with a booster pump and tank system "for future pressure drops when all future homes are built to maintain pressure” and specified the equipment to be provided. Contractor claimed that it omitted the equipment because the water pressure was currently adequate, but failed to acknowledge the plans required Contractor to supply the equipment at the time of construction based upon the potential for future pressure drops and that nothing in the plans allowed for the omission based upon currently adequate water pressure. This omission will cost at least $2,000 to rectify. Contractor has refused to correct the issue and thereby violated A.RS. §32-1154(A)(2 & 3) and (B). • Install a pressure regulator valve with a booster pump and tank system per plan details.

Complaint Item [4]: The plans specifically call out for a screen wall around the exterior air conditioning units in the rear yard, which was not built and was omitted. This is a $2,500 item plainly depicted on the specifications to the plans with no approved deletion or modification. Contractor has refused to correct the issue and thereby violated A.RS. §32-1154(A)(2 & 3) and (B). • Install per plan details

Complaint Item [7]: Water Filtration/Ice Maker. The Contractor supplied and installed the water Filtration system, which was installed improperly resulting in charcoal from the filter system being deployed throughout the house. This initially damaged the ice maker, which has never functioned and Contractor failed to correct the improper installation despite multiple requests. It has recently been discovered that the Contractor failed to properly vent the ice maker when installing, which has caused it to overheat and not make ice. Despite demand, Contractor has failed and refused to correct the issue and thereby violated A.RS. §32-1154(A)(2) & (B). •Correct charcoal residue.

Complaint Item [8]: Barbeque Patio Area. There are three issues with the southeast patio and barbeque area. 1) As to the BBQ surround and hood, the paint is peeling off in several places and lacked the adequate paint covering or appropriate installation.

Complaint Item 15: (This item was added at the inspection, both parties agreed to add) Window shade in guest bedroom coming apart.

Complaint Item 16: (This item was added at the inspection, both parties agreed to add) Divider in front window has fallen off.

Complaint Item 17: (This item was added at the inspection, both parties agreed to add) Holder for handheld shower nozzle is loose.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

You are advised that if your license is suspended for administrative reasons or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license ROC 046528 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.[3]

6. After Complainant informed Investigator Springer that Respondent had not complied with the December 5, 2018 directive, he referred the complaint to the Registrar’s Legal Department. On January 9, 2018, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under 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).[4] 7. Respondent’s attorney on its behalf filed a timely written answer to the Citation, denying any contracting law violations. Respondent’s attorney affirmatively alleged that the parities had an ongoing dispute over money and reconciliation, that Complainant had not complained about any of the issues before she filed her complaint or before the jobsite inspection, that the parties’ contract required alternative dispute resolution, and that, because Respondent’s license was inactive and it was no longer in business, requiring Respondent to hire an appropriately licensed contractor would create an undue financial hardship for Respondent.[5] 8. An evidentiary hearing was held via telephone on March 29, 2019, and via videoconference on May 15, 2019, from the Registrar’s Tucson office. Complainant submitted 21 exhibits and presented the testimony of two witnesses: (1) Complainant; and (2) Ronald Robinette, the architect who had drawn the plans for Complainant’s house. Respondent submitted eight exhibits and presented the testimony of two witnesses: (1) Bradley Wachs, Respondent’s project manager/ supervisor; and (2) Michael (“Mike”) Margolis, an architect that Respondent had retained as an expert witness. Investigator Springer also testified. / / / / Hearing Evidence 9. Complainant owns an art gallery in Tucson. She does not have any special expertise in architecture or construction. Complainant testified that the house is a 4200 square foot custom home in an upscale gated community. 10. Investigator Springer has been an Investigator for the Registrar for three years. He has worked as a building inspector for the City of Bisbee and for Cochise County for a total of 17 years. Although Investigator Springer is familiar with the International Building Code and has been certified by the International Code Council, he is not a registered architect and has never been a licensed contractor. Before he became a building inspector, he worked as framer for 12 years, building houses in southeastern Arizona. 11. Investigator Springer reviewed Mr. Robinette’s plans for Complainant’s house at the jobsite inspection, but did not receive a copy of the plans until later. 12. Complainant hired Mr. Robinette to prepare the plans for the house. Mr. Wachs testified that Mr. Robinette came up a few times a months during construction to see Respondent’s progress on the project. 13. Mr. Margolis obtained a degree in architecture from the University of Arizona in 1972. He has 45 years of experience in construction and design. He is an Architect Emeritus in New Mexico, California, and Texas and a registered architect in Arizona.[6] Mr. Margolis reviewed Mr. Robinette’s plans for the residence, Complainant’s complaint to the Registrar, the directive, the citation, and the parties’ prehearing disclosure. He also spoke to Mr. Wachs. The Driveway (Complaint Item #1) 14. Complainant’s house is built on a hill on a steep lot in the foothills to the mountains around Tucson. Access to the house is provided by a private, one-way street that is about 12’ to 15’ wide. 15. The Grading/Drainage plans for the hose show a concrete driveway bordered by brick up the hill with a flare at the bottom where the driveway meets the street. The only dimension shown for the driveway is 14’ wide about halfway up the hill to the house; the width of the “apron” or “throat” of the driveway where it meets the private road is not shown.[7] 16. Note 4 of the Site Plan at page C1 instructed Respondent “Do note scale dimensions. If clarification is required, consult the Architect.”[8] 17. Investigator Springer testified that he issued the directive because the driveway was not 14’ wide at a certain point up the hill. Investigator Springer did not remember measuring the apron of the driveway and did not have any opinion about whether it complied with the plans, the Registrar’s workmanship standards, or professional industry standards. 18. Complainant and Mr. Robinette opined that the apron of the driveway was too narrow, which caused large vehicles to bottom out when they entered the private road. Complainant’s homeowner’s association required her to pay for an asphalt patch to repair the private road caused by a vehicle exiting her driveway.[9] 19. Complainant testified that a delivery vehicle was stuck more than two hours on the driveway and that she was concerned that, if she or her husband ever need an ambulance, firetruck, or other emergency assistance, the vehicle would not be able to reach the house. 20. The apron of the driveway that Respondent constructed was between 28’ and 32’ feet wide. The Pima County Subdivision and Development Standard requires that two-way streets be at least 24’ wide. 21. Investigator Springer declined to comment on whether a driveway apron that was wider that the standard for a 2-way street was reasonable. 22. Complainant argued that Respondent should have constructed the apron at least 52’ wide, which is the scaled width of the driveway shown on the plans, which would make it easier for large vehicles to turn onto the private road. 23. Complainant submitted a drawing from Rick Engineering that showed the as-built dimensions of the driveway in red and the scaled dimensions of the driveway in grey.[10] Complainant also submitted a plan prepared by Mr. Robinette for correction of the driveway, that showed it widened to the scaled width shown on the plans.[11] Complainant testified that correcting the driveway apron will cost $43,000. 24. Mr. Robinette testified that he had drawn the plans to scale. He has years of experience in designing driveways. If the apron of the driveway was widened to the scale shown on the plans, it would improve accessibility to the house, although Mr. Robinette noted that a Ferrari with 4” clearance probably would still be unable to go down the driveway onto the private road without scraping. 25. Mr. Robinette acknowledged that the driveway and throat as constructed were close to what was shown on the plans. He has not measured the as- built width of the throat. 26. Mr. Robinette acknowledged that he had not discussed the width of the driveway or throat with Respondent during construction. The biggest discussion concerned the type of brick to use on the edge of the concrete driveway. Mr. Robinette stated that the driveway had been built close to the end of the project. 27. Mr. Wachs testified that the driveway was initially cut into the hill to allow supplies to be delivered and construction vehicles to reach the jobsite. Mr. Wachs testified that large vehicles such as dump trucks, concrete trucks, and a gigantic 30’ long pump truck, in addition to large pickup trucks, were able to arrive and leave the jobsite without incident throughout construction on the dirt road that Respondent cut. Mr. Wachs testified that the apron to the street was built wider than it was initially cut. 28. Mr. Wachs testified that Mr. Robinette had observed the apron while Respondent was constructing it and that Mr. Robinette never expressed any concerns. Mr. Wachs testified that the driveway apron was plenty wide to accommodate vehicles. Mr. Wachs testified that, if vehicles were bottoming out at the end of the driveway, it was because the drivers were going too straight or too quickly. 29. Mr. Margolis testified that he drove a large pickup to the project to view the driveway apron from the private road that runs in front of the residence. Mr. Margolis estimated that the apron was 28’ to 32’ wide, although he did not get out of his truck to measure it. 30. Mr. Margolis testified that, if the architect intended the driveway to be a specific width at the apron, he should have provided a specific dimension. Providing specific dimensions is a minimum requirement for a professional architect. Mr. Margolis testified that there is no specific building code for the width of private driveways. Mr. Margolis noted that the only place that the 14’ width was noted on the plans was in an area just below the parking area near the house and that Investigator Springer testified that he did not measure the whole driveway or the apron. Mr. Margolis testified that Respondent did not depart from plans in its construction of the driveway. 31. Mr. Margolis testified that he studied the Pima County Subdivision and Development guidelines and that the standard for a 2-way residential street is a minimum of 24’ wide. Mr. Margolis testified that a driveway apron that is between 28’ and 32’ wide is adequate to turn onto a 12’ to 15’ wide one-way road. His opinion was that the width of the driveway apron where it intersected the road was more than adequate. 32. Mr. Margolis testified that there was a 30’ elevation change from the road to the residence and that Respondent was required to protect native vegetation. Building the driveway was a challenging job. Complainant did not complain about Respondent’s workmanship on the driveway or the bordering bricks. Respondent did a fine job on the driveway and complied with all applicable workmanship standards. The Artisan Tile (Complaint Item #2) 33. Complainant selected and Respondent supplied and installed hand-made artisan tile from the Dominican Republic in the master bath and closet. 34. Complainant testified that the tile looked dirty and showed scuff marks after the final construction cleaning. Complainant opined that sealant that Respondent had used on the grout had somehow gotten into the tile. 35. Mr. Wachs testified that the tile was in the same condition that it had been when Complainant selected it. The variations in the finish were part of the inherent character of the artisan tile. Mr. Wachs testified that Respondent would not install damaged tile. The Pressure Regulator Booster (Complaint Item #3) 36. Plumbing Note 4 on page P2 of the Water Distribution Plan provided in relevant part as follows: “WATER PRESSURE: Water pressure design range 50-60 PSI . . . . The Plumbing Contractor shall provide booster pump if needed.”[12] (Emphasis added.) 37. Below Plumbing Note 4 on the same page under the heading Pressure Regulator Valve is the following provision: Provide pressure regulator valve with booster pump and tank system for future pressure drops when all future homes are built to maintain pressure . . . .

Following that additional explanation are specifications for the booster pump that should be installed if needed.[13] 38. The Plumbing notes also contain requirements for a dishwasher, clothes washer, sleeves, and other plumbing components without any conditional language.[14] 39. Investigator Springer acknowledged he did not know whether Note 4 followed by the additional explanation of the circumstances under which the booster pump would be needed allowed the contractor any latitude whether or not to install the booster pump, depending on the circumstances. Investigator Springer acknowledged that he had not run any of the faucets or shower heads to investigate the water pressure at Complainant’s house. Investigator Springer testified that he felt the second reference to the booster pump should have been deleted if the contractor was not required to install it. 40. Complainant complained that she paid for but did not get the pressure regulator booster. Complainant testified that houses will be built on another four lots nearby and that she is concerned about water pressure after that occurs. 41. Complainant acknowledged that she presently does not have any problem with low water pressure. 42. Mr. Wachs testified that Respondent increased the 1¼” diameter pipe that was called out in the plans to a 2” diameter pipe due to the steepness of the incline from the meter to the house without any additional charge to Complainant. During construction, water pressure in the house was over 80 p.s.i. Mr. Wachs testified that, because the desired water pressure in residential construction was between 50 and p.s.i., Respondent installed a pressure reducing valve on Complainant’s water line at the meter on the street. 43. Mr. Wachs testified that Respondent had built other homes in the area and that it never had a problem with water pressure. The water pressure at Complainant’s house was never below 50 p.s.i. Mr. Wachs testified that because, under the circumstances, a pressure regulator booster was not needed at Complainant’s house, he did not purchase or charge Complainant for the pressure regulator booster that was described in the plans. 44. Mr. Margolis testified that the project was designed to have 50 to 60 p.s.i. and that, if needed, a booster pump was to be installed. According to Mr. Wachs, because the initial pressure was 80 p.s.i., Respondent had installed a pressure reducer valve to bring water pressure within the desired range for residential construction. There was no reason for Respondent to install a booster pump under the circumstances. Respondent did not disregard the plans or depart from construction standards when it failed to install the booster pump. The Screen Wall Around the Air Conditioning Units (Complaint Item #4) 45. Detail 3 of the Grading/Drainage Plan Keynotes on the Grading/Drainage Plan at page C2 referred to the concrete pads where the air conditioning units would be installed on concrete pads in the utility yard between the garage’s exterior wall and the perimeter wall on the northeast side of the project, around a corner from the Garden Courtyard, which also referenced a stucco CMU wall.[15] 46. Nowhere in the plans are the dimensions or specifications for the screen walls around the air conditioning units on the concrete pads in the utility yard. No other references to the screen walls appear anywhere else on the plans. The plans do not include any drawing of the wall that shows their specific dimensions or height or width, even if scaling were permitted. The Reference Floor Plan at page A1 does not show the screen walls around the air conditioning units.[16] 47. Investigator Springer testified that the industry standard is for screening walls to be at least as high as the air conditioning units. Investigator Springer acknowledged that all other walls on the plans had dimensions and specifications. 48. Page M1 of the Mechanical Plan at Note 1 under the heading Air Conditioning Equipment provides a minimum clearance of 84” x 84” around the outside air conditioning units.[17] 49. Investigator Springer testified that if Respondent could not construct the screen wall while maintaining the minimum clearance around the units, it should have brought the issue up with the architect. 50. Complainant testified that, in a high-end house of this nature, a screen wall around the air conditioning units should have been provided. Complainant acknowledged that the air conditioning units could not be seen from the Garden/Courtyard.[18] Complainant testified that she enjoys her whole backyard and that, she has a kitchen garden and dog yard east of the units, from which she can see the units. Complainant testified that no one brought up that clearance is required around air conditioning units. 51. Mr. Wachs testified that the reference to the CMU wall on the Grading/ Drainage Plans without any dimensions or specifications would not allow a contractor to include the cost of the wall in its bid. There was not enough space to allow for the 84” x 84” clearance around the units if a screen wall were built and, if the walls were builty, it would be impossible to walk through the utility yard. 52. Mr. Wachs testified that, if the dimensions and specifications for the CMU screen wall around the air conditioning units had been on the plans, he would have talked to Mr. Robinette because the construction of the walls would have voided the warranty for the air conditioning units. 53. Mr. Wachs testified that, frequently, architect’s plans include boilerplate from previous plans for other houses that were used to prepare the plans for the current house. Mr. Wachs testified that Mr. Robinette never called his attention to the absence of screening walls around the air conditioning units when Mr. Robinette was on site. 54. Mr. Magolis noted that the plans did not provide the dimensions or specifications for the CMU screening wall that the Grading/Drainage Plan Keynotes referenced as being around the air conditioning units. Because the drawings did not show a wall around the pad-mounted equipment, the plans were in conflict. 55. Mr. Margolis testified that, if the architect had intended a screen wall around the air conditioning units, he would have shown the dimensions of the wall and reinforcing and other materials that would be used to build the wall. Otherwise, the general contractor and subcontractors would not be able to prepare bids for construction of the screen walls at the residence. 56. Mr. Margolis noted that Floor Plan Keynote 43 on the Reference Floor Plan at page A1 provided that “Outdoor A/C Unit mounted on concrete pad,”[19] with no mention of a CMU screening wall. Mr. Margolis noted this keynote is consistent with what was shown elsewhere in the plans. 57. Mr. Margolis testified that the minimum 84” x 84” clearance specified on the mechanical plans was provided by the air conditioning units’ manufacturer. Installing a screen wall in the space available would have voided the manufacturer’s warranty for the units. Mr. Margolis noted that there was only 8’8” of clear space between the side of the garage and the perimeter wall. Constructing a screening wall would prevent anyone from walking through the utility yard. The Water Filtration System (Complaint Item #7) 58. Complainant purchased a water filtration system and Respondent’s subcontractor installed it. After Complainant complained about charcoal coming out of her taps, Respondent’s subcontractor flushed the system. Subsequently, Complainant’s landscaping contractor broke the water main coming into the house. 59. Complainant testified that, after Respondent sent someone out to backflush the filtration system, she kept seeing dark residue coming out of her faucets. Complainant pointed out that the landscaper hit the pipe on the outside of the house, but the filtration system is on the inside of the house. Complainant testified that the filtration system is still not working correctly. 60. Complainant testified about problems with the installation of the ice maker and ventilation for the freezer, but acknowledged these issues were not on the directive and were not related to charcoal residue in the water filtration system. Complainant acknowledged that she had not performed any tests for charcoal in the tap water in her home. 61. Mr. Wachs testified that two weeks after she moved into the house, Complainant complained about charcoal residue. After his plumber back- flushed the system, the water from the tap ran clear. Mr. Wachs said that he did not hear anything more about the system until Complainant filed the complaint with the Registrar. 62. Mr. Wachs testified that he did not see Investigator Springer turning on the taps or conducting any tests on the water filtration system at the jobsite inspection.. 63. Complainant did not ask Investigator Springer any questions about the water filtration system. The only reference to the water filtration system on his jobsite inspection notes was, “Complainant stated that at time of inspection the water was clear, minor charcoal left in toilet tank.”[20] The Southeast Patio/Barbeque Area (Complainant Item #8) The Paint Peeling off the Barbeque Hood and Surround (Complaint Item #8a) 64. Investigator Springer acknowledged that Complainant did not file the complaint with the Registrar until a year and a half after Respondent completed construction. Investigator Springer acknowledged that a homeowner is responsible for performing maintenance on her home, but testified that paint should remain adhered to the surface to which it is applied for at least the Registrar’s 2-year warranty period. 65. Complainant testified that the paint is peeling off in 6” strips. The hood is cracking near the top, where the sun shines on it. 66. Mr. Wachs testified that the first time that Complainant complained about peeling paint on the barbeque hood and surround was when she filed the complaint with the Registrar. The Patio Drainage (Complaint Item #8b) 67. Complainant testified that after a heavy rain, the patio floods with up to 1½” to 2” of water that takes days to go away. Complainant testified that Respondent installed something that looks like a drain in the patio that goes nowhere. 68. Mr. Wachs testified that Respondent did not install a drain for the patio. The pipe that Complainant referenced was a sleeve for a drip irrigation system to water the plants in a pot on the patio. The Scratched Wrought Iron (Complaint Item #8c) 69. Complainant testified that Respondent’s painter put 2 thin coats of paint on the wrought iron gate without drying time and it quickly started showing scratches. 70. Mr. Wachs testified that, at the jobsite inspection, he saw scratches in the paint on the wrought iron gate. Before the jobsite inspection, he had seen Complainant’s dog jump up on the gate and put its paws on top of the gate. Mr. Wachs testified that he believed the dog caused the scratches. The Window Shade in the Guest Bedroom Coming Apart and Divider In Front Window Has Fallen Off (Added at jobsite inspection; Complaint Items # 15 and #16)

71. Investigator Springer testified that both parties agreed to add Complaint Items #15 and #16 at the jobsite inspection and that Respondent’s representative said these items would be easy fixes. 72. Complainant testified that no one ever stayed in the room where the window shade is coming apart. Holder for Handheld Shower Nozzle Is Loose (Added at Jobsite Inspection; Complaint Item #17)

73. Investigator Springer acknowledged that Complainant and her family had been using the handheld shower nozzle for more than a year and a half before the jobsite inspection. Nonetheless, Investigator Springer testified that the holder should not have come loose. 74. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history as shown on the Registrar’s public website on this date. As noted above, Respondent’s license is inactive. The Registrar has never before disciplined the license. Complainant’s is apparently the only complaint pending against the license. CONCLUSIONS OF LAW 1. The inactive status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent’s contractor’s license or prevent the Registrar from adjudicating Complainant’s complaint.[21] This matter lies within the Registrar’s jurisdiction.[22] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s license by a preponderance of the evidence.[23] Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[24] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[25] 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.”[26] 4. The parties’ dispute appears to be primarily financial. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[27] Although the final order on Complainant’s workmanship complaints may help the parties resolve their financial dispute, it also appears that Complainant’s motivation in filing the complaint with the Registrar may have been her feeling that Respondent owed her money and had not fairly determined financial reconciliation under the contract. 5. Investigator Springer’s directive requiring Respondent to correct the driveway to make it uniformly 14’ wide was based on a misunderstanding of the gravamen of Complainant’s Complaint Item #1. No dimensions were shown on the plans for the width of the apron or throat of the driveway where it intersects with the private road. The plans provided that actual dimensions should not be based on a scale of the drawings included in the plans. Mr. Robinette did not instruct Respondent to widen the apron when it was a part of a dirt road providing access for construction vehicles or after it was part of a finished concrete driveway. The finished width of the apron is greater than the county requires for two-way residential streets and is twice the width of the private one-way road that the driveway intersects. Under any circumstances, accessing Complainant’s house high on hill will present challenges and require that motorists exercise special care. Therefore, Complainant did not establish that Respondent’s construction of the driveway apron (Complaint Item #1) does not comply with Mr. Robinette’s plans or professional industry standards and did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. §§ 32-1154(A)(2)[28] or 32-1154(A)(3),[29] namely, A.A.C. R4-9-108.[30] 6. Mr. Robinette’s plans required Respondent to install a pressure regulator booster “if needed.” A pressure regulator booster was not needed and, in fact, Respondent had to install a pressure reducing valve on Complainant’s water line to bring water pressure down to the desired 50 p.s.i. to 60 p.s.i. range for residential construction. Respondent did not charge Complainant for installation of a pressure regulator booster because it was not needed. The possibility that future construction in the area may require not only that Complainant must remove the pressure reducing valve that Respondent installed but also must have a pressure regulator booster installed is too speculative to provide a basis for the suspension or revocation of Respondent’s contractor’s license. Therefore, Complainant did not establish that Mr. Robinette’s plans required Respondent to install a pressure regulator booster under the circumstances of this case (Complaint Item #3) and did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. §§ 32-1154(A)(2) or 32- 1154(A)(3), namely, A.A.C. R4-9-108. 7. Mr. Robinette’s Grading/Drainage Plan Keynotes referenced a screen wall around the air conditioner units that would be mounted on concrete pads in the utility yard. The plans do not contain any dimensions, specifications, or even drawings of the screen walls. If the walls were constructed, they would void the manufacturer’s warranty on the air conditioning units due to insufficient clearance around the units. Moreover, the air conditioning units could not be easily serviced because they could not be easily accessed. The air conditioning units are not visible to Complainant’s neighbors or visible from most parts of Complainant’s backyard. Therefore, Complainant did not establish that Mr. Robinette’s plans required Respondent to construct a CMU screen wall around the air conditioning units in the utility yard (Complaint Item #4) and did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. §§ 32-1154(A)(2) or 32-1154(A)(3), namely, A.A.C. R4-9-108. 8. Complainant did not establish that Respondent violated any contracting statute with respect to its installation of the artisan tile (Complaint Item #2), the water filtration system (Complaint Item #7), the patio drainage (Complaint Item #8b), or the scratched wrought iron gate (Complaint Item #8c). 9. In Arizona, contractors must warranty their work for two years after finishing construction.[31] Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22)[32] with respect to its construction and failure to have repaired the peeling paint on the barbeque hood and surround (Complaint Item #8a), the window shade in the guest bedroom (Complaint Item #15), the divider in the front window (Complaint Item #16), and the holder for the handheld shower nozzle (Complaint Item #17). These items are all relatively minor and, although Respondent agreed at the jobsite inspection to repair Complaint Item #15, #16, and #17, its inactive license prevented it from doing so. Under the circumstances, no purpose would be served by the imposition of a monetary civil penalty in a nominal amount under A.R.S. § 32-1154(E).

RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, License No. ROC 046528 of Respondent Wachs Construction, Inc. shall be suspended for a period of one (1) business 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 five days from the date of that certification. Done this day, June 4, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Respondent’s Exhibit 5. [2] See the Registrar’s electronic file at pdf pages 156 - 159. [3] Respondent’s Exhibit 1. [4] See the Registrar’s electronic file at pdf pages 6 - 12. [5] See Respondent’s Exhibit 2. [6] See Respondent’s Exhibit 8. [7] See Complainant’s Exhibit M at page C36; Respondent’s Exhibit 7 at pdf page 7. Respondent submitted the complete set of plans, which was reduced to fit on an 8½” x 11” sheet of paper. See Respondent’s Exhibit 7. Although Complainant submitted the plan that showed the driveway that was blown up, it did not show all the other notes on the page that were relevant to the parties’ dispute. The Administrative Law Judge had some difficulty reading the small print on the reduced plans. However, the parties did not dispute the plans’ provisions. [8] Respondent’s Exhibit 7 at pdf page 6. [9] See Complainant’s Exhibit H at page C26. [10] See Complainant’s Exhibit O at pp. C41-C42. [11] See Complainant’s Exhibit U at C51. [12] Respondent’s Exhibit 7 at pdf page 41. [13] Id. [14] Id.; see also Complainant’s Exhibit S at p. C-53 (enlarged print). [15] See Respondent’s Exhibit 7 at pdf page 7. The Administrative Law Judge was unable to read the fine print and the parties did not provide a blowup of that portion of the plans. The parties did not dispute that the plans included the reference. [16] See Respondent’s Exhibit 7 at pdf page 10. [17] See Respondent’s Exhibit 7 at pdf page 43. [18] See Respondent’s Exhibit 7 at pdf page 10 (page A1 of the Reference Floor Plan). [19] Respondent’s Exhibit 7 at pdf page 10. [20] The Registrar’s electronic file at pdf page 99. [21] See A.R.S. § 32-1154(D). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [22] See A.R.S. § 32-1154(A). [23] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [24] See A.A.C. R2-19-119(B)(2). [25] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [26] Black’s Law Dictionary at page 1220 (8th ed. 1999). [27] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [28] A.R.S. § 32-1154(A)(2) includes among the grounds to suspend or revoke a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [29] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [30] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [31] A.R.S. § 32-1155(A) provides that the Registrar may investigate claimed contracting law violations and, if violations are found, discipline a contractor’s license “[u]pon the filing of a written complaint charging a licensee with the commission, within two years prior to the date of filing the complaint,” of the contracting law violation. [Emphasis added.] [32] A.R.S. § 32-1154(A)(22) includes among the grounds to suspend or revoke a contractor’s license, “[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.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826