ALJDEC decisions subject to certification as final

2018A-1770-CHC-ROC · Registrar of Contractors · 2018-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2018 APPEARANCES: Complainant Diane E. Arnold appeared on behalf of herself. Tim Heine appeared on behalf of Respondent Sunsites Construction, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On or about June 13, 2016, Complainant Diane E. Arnold entered into a contract with Respondent Sunsites Construction, LLC (“Sunsites”) for the installation of a solarium at Ms. Arnold’s home located at 955 N. Slope Way, Cochise, AZ 856069. 2. Tim Heine is the qualifying party for Sunsites. 3. In July of 2016, Sunsites completed the installation. 4. Ms. Arnold subsequently discovered a leak in the solarium. 5. In April of 2018, D.B.C. Construction Company, L.L.C. (“DBC”), submitted a proposal to Ms. Arnold to repair the leak in the solarium. The proposal provided, in relevant part, as follows: Start Date: Approximately April 4th 2018· Completion Date: Approximately April 9th 2018. We hereby submit the following specifically described work order:

All along the base of the Solarium frame, on the outside, all caulking needs to be removed and re caulked. The Solarium was not properly installed at the base where the Solarium meets the wall. It Appears there was some areas that caulking was not applied. Leaking is at the southeast comer and the northeast comer. Being this was installed by someone else, After caulking is reapplied, and there Is a water test. This will determine if the leak was found. If there is leaking after the caulking repair, depending how much? There could be more labor/travel cost.

6. The proposal did not provide a Registrar license number for DBC. 7. In April of 2018, DBC performed the work described in the proposal. 8. On or about April 16, 2018, the Registrar of Contractors (“Registrar”) received a complaint from Ms. Arnold alleging that Sunsites performed poor work in connection with a residential construction contract.

9. The complaint was assigned to Investigator Michael Springer, an inspector for the Registrar. 10. On or about May 9, 2018, Investigator Springer conducted an initial jobsite inspection. Investigator Springer observed that the original caulking had been removed and replaced by someone other than Sunsites. However, Investigator Springer could not determine the type of caulking that was used. See Administrative record. 11. On May 14, 2018, Investigator Springer issued a Directive. The May 14, 2018 Directive provides, in relevant part, as follows: You are hereby directed to remedy the following violations by the appropriate means:

1. Correct the gaskets that were cut during installation. Manufacturer states gaskets should be cut to length and installed in one piece.

2. Correct gapping on front of structure where separating. Re-caulk as needed using Dow Corning 795 per manufacturer.

12. The deadline for compliance under the Directive was May 30, 2018. 13. On July 2, 2018, the Registrar closed the complaint because it believed that the leak had been fixed. 14. On July 17, 2018, the Registrar reopened the complaint because the solarium began to leak. 15. On August 2, 2018, Investigator Springer conducted a second jobsite inspection. The jobsite inspection notes provide, in relevant part, as follows: Jobsite General Notes: I took 14 photos using my agency issued Canon ELPH 180 Digital Camera.

Complaint Item 1: The sunroom was never squared properly.

Investigator’s Observation: I was unable to determine if the building was out of square. However, in relation to the existing structure, the new structure appears to follow the same lines. There are gaps, seperation at the lower channels and both the Complainant and Respondent agreed that this was something that happened after the final construction.

Governing Rule: Wormanship Rule: 32 1154 (A) (3) R4-9-108.

16. On August 2, 2018, Investigator Springer issued a second Directive. The August 2, 2018 Directive provides, in relevant part, as follows: You are hereby directed to remedy the following violations by the appropriate means:

1. (Item 3 of Complaint) He didn't seal the building according to the manual provided by the manufacturer, therefore there are gaps that caulk can't keep from leaking.

● Correct all leaks by appropriate means.

17. The deadline for compliance under the second Directive was August 20, 2018. 18. Sunsites did not make the corrections listed in the Directive by the August 20, 2018 deadline. 19. On August 21, 2018, the Registrar issued a Citation alleging that Sunsites violated A.R.S. § 32-1154 (A)(3) and (A)(22). 20. Sunsites filed a timely response to the Citation. 21. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 22. On September 7, 2018, the Registrar issued a Notice of Hearing setting the above captioned matter for hearing on October 15, 2018 at 8:30 a.m.[1] The Notice of Hearing provides that the issue set for determination is the Citation issued by the Registrar. 23. A hearing was held on October 31, 2018. Ms. Arnold testified on her own behalf and submitted exhibits A through H. Mr. Heine testified on behalf of Sunsites and presented the testimony of Martin Goeglein. Sunsites submitted exhibits 1 through 6. Investigator Springer testified regarding his involvement with the complaint and the events leading up to the issuance of the Citation. 24. At hearing, Ms. Arnold admitted that she should have contacted Sunsites before hiring DBC to repair the water leak. Ms. Arnold testified that DBC performed the work described in the proposal which included the removal of the caulking. Ms. Arnold testified that DBC performed the water test described in the proposal. Ms. Arnold testified that Sunsites used the incorrect caulking which cause the water leak. Ms. Arnold testified that that Sunsites was required to use a caulking of 795 and failed to do so. 25. Mr. Heine contended that Sunsites did not perform poor work when it installed the solarium. Mr. Heine opined that Ms. Arnold’s home could have shifted during an earthquake. Moreover, Mr. Heine contended that a second contractor removed the caulking that installed by Sunsites and he should not be liable for the work of another contractor. In addition, Mr. Heine argued that DBC was not a licensed contractor. With regard to the type of caulking, Mr. Heine testified that the manufacturer only recommended that a caulking of 795 be used, but that other caulking could be used to properly seal the solarium. 26. Investigator Springer observed at the original jobsite inspection conducted on May 9, 2018, that the original caulking was removed by the second contractor. However, Investigator Springer also testified at hearing that DBC did not remove the original caulking used by Sunsites, because DBC would have to have removed the entire Solarium to remove the original caulking. 27. Administrative notice is taken of the prior License record of Sunsites on November 20, 2018. Such prior License record reflects that License No. 173707 was first issued to Sunsites on May 11, 2002, and is current and that Sunsites has had no prior discipline. Such prior License record shows that there is one open complaint against the license of Sunsites. The lack of prior discipline taken is considered a mitigating factor in imposing discipline. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-

1154(A). 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 4. A.R.S. § 32-1155(C) provides, in relevant part, as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

2. The contractor's work has been subject to neglect, modification or abnormal use.

5. The preponderance of the evidence does not establish that Sunsites work fell below minimum workmanship standards. Although Investigator Smith testified that he believed that the caulking installed by Sunsites was not removed, the Investigator’s own inspection notes show that he observed that the original caulking had been removed by a second contractor. Ms. Arnold testified that DBC performed the work described in its proposal including the removal of the caulking that existed and performing a water test. Even if DBC had simply added additional caulking, there was insufficient evidence to separate the original caulking from the caulking installed by DBC. The Administrative Law Judge finds that Sunsites work was modified by DBC. DBC’s modification precludes Ms. Arnold from prevailing in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty days from the date of the certification. Done this day, November 20, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The matter was continued to October 31, 2018 at 8:30 a.m.

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