ALJDEC

97F-2624-ROC · Registrar of Contractors · 1997-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 1997

APPEARANCES: Joseph Madonia, on behalf of the Complainants. Stephen Richman, counsel for the Respondent.

ADMINISTRATIVE LAW JUDGE: Casey J. Newcomb _____________________________________________________________________

On December 11, 1997, a hearing was held to determine if the Respondent violated A.R.S. §32-1154(A) as alleged by the Complainant and as Cited by the Registrar of Contractors (“ROC”). Joseph Madonia (the “Complainant”) appeared on behalf of the Complainants. Attorney Stephen Richman represented the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACTS

1. On or about February 5, 1996, the Complainant and Pulte Home Corporation dba Pulte Home Corporation Arizona Division (the “Respondent”) entered into a Purchase Agreement (the “Contract”) to construct a home at 6965 W. Williams Dr., Glendale, Arizona (the “Home”). See Respondent’s Exhibit 2.

2. The Respondent is a Michigan corporation in the business of constructing homes. Respondent is located at 10235 S. 51st Street, STE 100, Phoenix, Arizona. See Respondent’s Exhibit 2.

3. On or about June of 1996, the Complainant moved into the Home. See Respondent’s Exhibit 1. At that time, the Complainant’s wife signed a document entitled “Pulte Home Construction” which clearly warned the Complainants that “[d]uring the landscaping procedure, it is important that swales not be filled or concrete patios or sidewalks be placed that block proper [water] flow.” See Respondent’s Exhibit 3.

4. On or about August of 1996, the Complainant noticed that the pad under the outdoor A/C unit was sinking. See Respondent’s Exhibit 1. The undersigned Administrative Law Judge takes administrative notice that this was approximately when the major August 14, 1996 storm swept through Glendale and Phoenix causing extensive damage to many homes.

5. Chas. Robert’s Air Conditioning, the subcontractor who installed the A/C unit, sent a crew to the Home. The crew lifted the unit and pushed more dirt under the shell. Upon completion of the corrective work, the Complainant stated that the A/C unit was level. See Respondent’s Exhibit 1.

6. The A/C unit at issue is located on the East side of the Home. On or about September or October of 1996, the Complainant laid a sidewalk next to the A/C unit that extends North to South along the East side of the Home. The A/C unit lies between the Home and the new sidewalk. See Respondent’s Exhibit 4.

7. On or about April of 1997, the A/C unit and underlying pad began to sink again. The Complainant sent a letter to the ROC requesting that the Respondent remedy the problem. See Respondent’s Exhibit 1.

8. The Complainant testified that prior to purchasing the Home, he inspected a model home that had a cement pad underneath the A/C unit. The Complainant’s new Home does not have a cement pad underneath the A/C unit. Rather, the Home has a polypropylene pad or shell underneath it. The Complainant testified that he felt that a cement pad (per the model home) would prevent the A/C unit from sinking.

9. On May 1, 1997, the ROC scheduled a jobsite inspection for June 5, 1997 at 3:30 P.M. This jobsite inspection was rescheduled for June 9, 1997 at 7:00 A.M. At the jobsite inspection, the Complainant, ROC Inspector Lewis King, and Jerry Phillips (the Respondent’s area supervisor) were present.

10. On June 11, 1997, the ROC issued a Corrective Work Order (CWO) to the Respondent requiring corrective work within 15 days on the following issues: -Contractor to determine cause and correct condition of settling. -Replace air conditioning fiberglass pad with concrete pad/per model. -All work to be done within industry standards.

11. The ROC Inspector, Lewis King (the “Inspector”), testified that the A/C unit would not sink or tilt if there was a cement or concrete slab underneath it. The Inspector felt that a cement or concrete slab would be more stable. On cross-examination, the Inspector conceded that pooling water can cause the soil underneath the A/C unit to compact or compress which could cause the A/C unit to sink.

12. Chris Burkhardt, Operations Manager for Chas. Roberts Air Conditioning, testified that the polypropylene pad is actually superior to a concrete pad because concrete chips, cracks and is much more difficult to move. Mr. Burkhardt testified that polypropylene is now fully accepted within the industry.

13. Mr. Burkhardt testified that the type of pad underneath the A/C unit is not the reason for the sinking or tilting of the A/C unit. Rather, the sinking is due to the soil underneath and around the A/C unit. Mr. Burkhardt testified that the new sidewalk keeps the water from running away from the Home. Therefore, the water tends to pool or collect around the A/C unit which makes the soil unstable. An A/C unit tends to sink more on wet, unstable ground regardless of the type of pad. Mr. Burkhardt further testified that the A/C unit (on a cement pad) would probably sink more because cement is much heavier than polypropylene.

14. Mr. Burkhardt testified that on December 10, 1997, he visited the Home and found that the A/C unit was slightly (3/8 of an inch) out of line. Mr. Burkhardt also noted that the soil was wetter and spongier around the A/C unit as opposed to the other side of the new sidewalk. Mr. Burkhardt testified that his company is willing to re-level the area around the A/C unit.

15. Shawn Chlarson, Respondent’s Construction Manager for the Phoenix Division, testified that pursuant to the Contract, the Respondent may “use materials of substantially equivalent quality and appearance.” See Respondent’s Exhibit 2, page 3. Mr. Chlarson further testified that polypropylene pads are actually superior to cement pads in quality and appearance because of the following: (1) cement pads crack and chip; (2) cement pads warp and flake; (3) the polypropylene pads will not become discolored; and (4) cement pads are more difficult to move.

16. Mr Chlarson testified that polypropylene pads actually cost $21.00 more per pad than cement pads. However, the benefits (for the customer) by using the polypropylene pads far outweigh the increase in costs. Mr. Chlarson further testified that the polypropylene pads comply with Section 1504 of the 1991 Uniform Mechanical Code and Section 417 of the Uniform Building Code. Polypropylene pads have also received the approval of the International Congress of Building Officials (ICBO Report #4869). See Respondent’s Exhibit 6.

17. Although the record is not entirely clear, it appears that in August, 1997, the Respondent offered to pack more dirt under the A/C pad and to re- level it again. However, the Respondent refused to replace the polypropylene pad with a cement pad. Both Mr. Chlarson and Mr. Burkhardt testified that removing the polypropylene pad and replacing it with a cement pad would cause great damage to the A/C unit. Apparently, the Complainant rejected the Respondent’s offer.

18. Based upon the foregoing, the undersigned Administrative Law Judge finds that the sinking or tilting of the A/C unit is not related to the type of pad used underneath the A/C unit. Furthermore, the undersigned Administrative Law Judge finds that the polypropylene pad now underneath the Home’s A/C unit is of better quality than the cement pad underneath the model home.

19. Based upon the foregoing, the undersigned Administrative Law Judge finds that the sinking or tilting of the A/C unit is due to (1) the improper leveling and packing of the soil around and underneath the A/C unit and (2) the pooling of water caused by the laying of the new sidewalk.

20. On or about June 23, 1997, the Respondent sent a letter to the ROC requesting a formal hearing.

21. On August 29, 1997, a Citation (and the Complainant’s Complaint) were issued to the Respondent alleging violations of A.R.S. §32- 1154(A)(7)(23)(3) and R4-9-108.

22. On September 17, 1997, the Respondent filed an Answer to the Citation and Complaint denying any violations of A.R.S §32-1154(A) and R4-9-108. CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990).

2. To violate A.R.S. §32-1154(A)(7), the Respondent must do a wrongful or fraudulent act resulting in another person being substantially injured. The undersigned Administrative Law Judge finds absolutely no fraud in this case. However, the undersigned Administrative Law Judge does find that a preponderance of the evidence shows that the Respondent committed a wrongful act against the Complainant causing substantial injury by not properly packing the dirt underneath the A/C unit and leveling the surrounding area.

3. To violate A.R.S. §32-1154(A)(23), the Respondent must fail to take appropriate corrective action within a reasonable period of time after receiving a written directive from the Registrar. The undersigned Administrative Law Judge finds no violation of this statute because the Respondent attempted to take corrective pursuant to Findings of Fact 17.

4. To violate A.R.S. §32-1154(A)(3), the Respondent must violate any rule adopted by the Registrar. The preponderance of evidence shows that the Respondent violated R4-9-108 by failing to properly level and pack the soil under and around the A/C unit.

5. Although the Respondent has technically violated A.R.S. §32-1154(A) and R4-9-108, the Complainant is partially at fault pursuant to Findings of Fact #19. Furthermore, the undersigned Administrative Law Judge finds that replacing the polypropylene pad underneath the A/C unit with a cement pad would be impracticable and unreasonable pursuant to Findings of Fact #12-18.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B license be suspended until the Registrar receives proof that the Respondent has performed the following corrective work:

The Respondent shall add and pack soil under the A/C unit. The Respondent shall also re-level the soil under and immediately around the A/C unit.

It is further recommended that if the Respondent accomplishes or causes the accomplishment of the aforesaid corrective action in a proper, workmanlike manner on or before this Order’s effective date, or if the Respondent is unable to comply with the corrective action because of the Complainant’s unwillingness to grant Respondent’s representatives reasonable and timely access to the Home, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number 97-2624 shall be closed.

Done this day, December 22, 1997.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826