ALJDEC

99F-0155-ROC · Registrar of Contractors · 1999-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On June 4, 1999, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Robert and Ramona Saunders (the “Complainants”) appeared on their own behalf. Attorney Neil Thomson represented New American Builders Corp. (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 FACT

1. The home at issue in this case is located at 16020 E. Lost Hills Drive, Fountain Hills, Arizona (the “Home”). Mrs. Saunders testified that she thought that she had purchased the Home from the Respondent. The record is not entirely clear on this issue, but apparently the Complainants actually purchased the Home from a Mr. Loveburg of the Loveburg Investment Company. Mr. Loveburg apparently owned the property and had contracted with the Respondent to build the Home.

2. On or about July 10, 1998, the Complainants filed a Complaint with the Registrar of Contractors (the “ROC”) alleging 8 separate items that required corrective work at the Home. One item pertained to the Home’s kitchen ceiling which was sagging more than

3/8 of an inch over a 2 foot span. A second item pertained to an allegedly misplaced berm on the east side of the Home.

A. KITCHEN CEILING

3. Wayne Johnson is the Respondent’s Customer Services Manager. Mr. Johnson testified that the Respondent received a complaint from the Complainants regarding the ceiling in the Home’s kitchen. Mr. Johnson testified that he personally visited the Home. Mr. Johnson testified that there was a bow in the kitchen’s ceiling that did not meet industry standards. Mr. Johnson testified that the Respondent agreed to fix the ceiling. However, Mr. Johnson testified that he suggested that the Complainants wait until the end of the first year of their residency in the Home (June of 1999) to fix the ceiling. Mr. Johnson testified that all of the problems in the Home could be corrected at one time in June of 1999 to avoid any inconvenience to the Complainants. Mr. Johnson testified that the Complainants did not want to wait the full year.

4. On or about August 31, 1998, the Respondent first attempted to correct the problem in the Home’s kitchen ceiling. This was prior to the issuance of any Corrective Work Order (“CWO”) by the ROC. Mr. Johnson testified that the Respondent contacted Roadrunner Drywall to correct the problem. Mr. Johnson testified that Roadrunner Drywall attempted to add more mud to the ceiling to even out the bow. On or about September 4, 1998, Roadrunner Drywall completed the ceiling. However, Mr. Johnson conceded that this attempt to correct the kitchen ceiling failed.

5. On or about September 7, 1998, the Respondent made a second attempt to correct the ceiling in the Home’s kitchen. This was also prior to the issuance of any CWO by the ROC. On this attempt, Roadrunner Drywall cut out a section of the ceiling and replaced it. Mr. Johnson testified that the kitchen was covered with plastic to prevent dust from spreading to the other parts of the Home. Mr. Johnson testified that the Respondent offered to remove the plastic during the evenings and weekend. However, Mr. Johnson testified that Mr. Saunders told him not to worry about removing the plastic because the Complainants were staying with their daughter. On or about September 15, 1998, Roadrunner Drywall completed its second attempt to correct the kitchen ceiling.

6. On or about September 16, 1998, ROC Inspector Marty DiAntonio inspected the Home. On or about September 25, 1998, Inspector DiAntonio issued a CWO requiring the Respondent to correct the sagging ceiling in the Home’s kitchen. See CWO, dated September 25, 1999.

7. On or about October 12, 1998, Roadrunner Drywall made a third attempt to correct the ceiling in the Home’s kitchen. Mr. Johnson testified that Roadrunner Drywall removed a section of the kitchen ceiling and “floated” the ceiling again. Mr. Johnson testified that Roadrunner Drywall sprayed the entire ceiling. Mr. Johnson testified that the kitchen was completely covered with plastic to reduce the spread of dust. Mr. Johnson testified that he personally offered to remove the plastic during the evenings and weekend. However, Mr. Johnson testified that Mr. Saunders told him that the removal of the plastic would be unnecessary because the Complainants would not be using the Home’s kitchen. On or about October 20, 1998, Roadrunner Drywall completed its third attempt to correct the kitchen ceiling.

8. Mrs. Saunders testified that the Home’s kitchen ceiling still was not acceptable. Mr. Saunders testified that he never told Mr. Johnson that the Complainants were staying with their daughter or that they would not be using the kitchen during the Respondent’s corrective work. However, the parties decided to wait until the end of the first year of the Complainants’ residency at the Home (June of 1999) to correct the kitchen ceiling.

9. On or about October 17, 1998, the Complainants filed a second Complaint with the ROC. On or about December 23, 1998, ROC Inspector DiAntonio issued a second CWO requiring the Respondent to correct 2 additional items. These items were successfully corrected and are not pertinent to this hearing.

10. On or about June 3, 1999, ROC Inspector Robert Mechsner inspected the Home’s kitchen ceiling. Inspector Mechsner testified that he noticed a slight bow and a hairline crack in one area of the ceiling. However, Inspector Mechsner testified that the bow and hairline crack were well within industry standards. Inspector Mechsner testified that the bow was less than 3/8 of an inch over a span of 8 feet. Inspector Mechsner testified that he eyed the measurement because it was clearly within industry standards. Inspector Mechsner testified that all of the Respondent’s repairs at the Home appeared to have been performed in a workmanlike manner.

11. Mrs. Saunders testified that the dust from the corrective work in the kitchen caused her to incur extensive medical expenses. However, Mrs. Saunders presented no medical evidence showing that the dust from the Respondent’s corrective work caused her medical problems. Mrs. Saunders also testified that the Complainants were inconvenienced because the Respondent took so long to correct the kitchen ceiling. The Complainants also complained that they incurred additional expenses cleaning up after the Respondent. However, the undersigned Administrative Law Judge finds that the Complainants provided insufficient proof that the Respondent failed to properly plastic off and clean the Home’s kitchen. In fact, the Complainants’ pictures show that the kitchen was covered with plastic during the Respondent’s corrective work. See Complainants’ Exhibit G. Furthermore, the Complainants could have avoided these inconveniences by simply waiting until the end of the year to correct all of the Home’s problems.

B. BERM

12. The Montgomery Engineering & Management schematics (the “Montgomery Schematics”) for the Home’s property clearly show that a berm was to be placed within the Home’s eastern boundary. The Montgomery Schematics show that the berm was not to be placed on the Home’s eastern boundary line. The Montgomery Schematics were approved by the City of Fountain Hills and the NCOA.

13. Mr. Gary Beach is a landscaper who works for Town & Country Landscaping. Mrs. Saunders testified that she had a meeting with Mr. Loveburg and Mr. Beach on or about June 2, 1998. Mrs. Saunders testified that Mr. Loveburg promised her that a berm would be placed on the Home’s eastern boundary line. Mr. Beach subsequently placed a berm on the eastern side of the Home’s property. However, Mrs. Saunders subsequently learned that the Home’s eastern boundary line was about 18 feet further east from the berm.

14. The Respondent was not present for the conversation between Mrs. Saunders, Mr. Loveburg and Mr. Beach. However, Mrs. Saunders testified that she believed that Mr. Loveburg was associated with the Respondent. Mrs. Saunders testified that the Respondent failed to place the berm on the Home’s eastern boundary line because the City of Fountain Hills would have required the Respondent to place an additional retaining wall on the Home’s eastern property. Mrs. Saunders testified that the Respondent refused to spend the extra money for the retaining wall.

15. Mrs. Saunders testified that she ultimately had to pay to relocate the berm on the Home’s eastern boundary line and to build the additional retaining wall. Mrs. Saunders testified that she had to relocate the berm because future neighbors could possibly assume that the allegedly misplaced berm was the actual boundary line. Mrs. Saunders testified that she feared future lawsuits regarding the Home’s eastern boundary line.

16. On or about September 16, 1998, Inspector DiAntonio inspected the Home’s eastern property and found that the Respondent was under no contractual obligation to move the berm or to build the additional retaining wall. See CWO, dated September 25, 1998.

17. The undersigned Administrative Law Judge finds that Mr. Beach properly placed the berm within the Home’s eastern boundary line pursuant to the Montgomery Schematics. The undersigned Administrative Law Judge further finds that insufficient evidence was presented showing that Mr. Loveburg was associated with the Respondent. The undersigned Administrative Law Judge further finds that the Respondent never agreed to place the berm on the Home’s eastern boundary line. Finally, the Complainants have failed to show that they were damaged or injured by the allegedly misplaced berm. It is pure speculation that a future neighbor might possibly claim part of the Home’s eastern property based on the allegedly misplaced berm.

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. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact ## 10, & 17.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact # 10, 11 & 17. 4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23). No evidence was presented showing that the Respondent failed to timely perform the appropriate corrective action after receiving the two Corrective Work Orders.

5. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B license pursuant to A.R.S. §32- 1154.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 99-0155 be dismissed.

Done this day, June 10, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 1999, to:

Mr. Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826