ALJDEC

99F-1667-ROC · Registrar of Contractors · 2000-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 29, 1999. APPEARANCES: COMPLAINANT: Patricia Hamilton Balsamo, on her own behalf. RESPONDENT: Rob Callahan, authorized representative. REGISTRAR OF CONTRACTORS: Inspector Mel Purchase.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on December 29, 1999, to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents relative to the procedural history of the case, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT 1. In July, 1997, Complainants Ronald Balsamo and Patricia Hamilton Balsamo (the Balsamos) contracted with Respondent Shea Co., Inc. (Shea Homes), holder of Arizona Contractor’s License No. 081359, Class B, to build their residence at 11856 East Parkview Lane, in Scottsdale, Arizona.

2. On November 30, 1998, the Balsamos filed a complaint with the Registrar of Contractors addressing drywall and ceiling concerns, among other workmanship matters, and expressing concern relative to Respondent’s failure to respond to such matters when previously notified. 3. Inspector Dragoon, on behalf of the Registrar of Contractors, conducted a jobsite inspection of the residence on January 8, 1999, with both parties present, and then issued his Corrective Work Order (CWO) on January 19, 1999, in which Respondent was directed to take appropriate corrective action relative to certain, but not all, of the 14 items referenced therein. 4. Subsequently, when the matters at issue were not resolved, the Registrar issued CITATION AND COMPLAINT in Case No. 99-1667 charging Respondent with possible violations of A.R.S. §§ 32-1154.A. 3 (and A.A.C. R4-9-108, the workmanship rule), .7, and .23. Respondent timely answered, and hearing was duly scheduled. 5. Because Dragoon left the service of the Registrar, further processing of the complaint was first reassigned to Inspector Coscia, and then to Inspector Purchase (Purchase), who then conducted a pre-hearing jobsite inspection on December 23, 1999, with Ms. Balsamo and Rob Callahan (Callahan) both present. 6. Prior to hearing, Complainants filed correspondence with the undersigned on December 2 and 21, 1999 (including a home inspection report dated December 12, 1999), all of which raised additional items not addressed in either the original complaint, the initial jobsite inspection and CWO by Dragoon, or the later inspection by Purchase. 7. After consideration of the respective positions of the parties at hearing, the undersigned ruled that the scope and subject matter of this proceeding would consist only of those items raised in the original complaint and considered by Inspectors Dragoon and Purchase, with Complainants retaining all statutory rights to invoke the jurisdiction of the Registrar of Contractors on other matters within the time frame allotted by law. 8. The parties therefore confirmed that all remaining issues to be resolved in this proceeding were limited to the matters raised in items 7 and 9 of the Corrective Work Order, and all subsequent testimony was therefore limited to those items. 9. Testimony was provided by Inspector Purchase to explain his findings and conclusions upon review of the file maintained by the Registrar in this case (including the notes and CWO authored by Inspector Dragoon), and upon his own pre-hearing jobsite inspection of the residence on December 23, 1999, in the presence of Ms. Balsamo and Mr. Callahan, as Respondent’s representative. 10. Inspector Purchase stated that, with regard to the finish of particular drywall seams (CWO Item 7), certain of them were visible depending on changes in the ambient light, but that the extent of such visibility did not exceed workmanship standards as recognized by the Registrar for the smooth “Santa Fe” finish under normal lighting conditions in the home. He noted that such a finish tended to reveal every possible flaw. For that reason, the inspector concluded that Item 7 required no further action by Respondent. 11. With regard to the bowed ceiling in the great room (and living room) (CWO Item 9), Inspector Purchase explained that his jobsite measure of the variation revealed a maximum of 5/16” in two areas, with other areas less than that, but with no bowing found in excess of the Registrar’s accepted standard of 3/8”. He therefore concluded that because the bowing was just within that tolerance, Item 9 required no further action. 12. Complainant Balsamo testified to clarify her rationale in bringing the complaint against Respondent Shea Homes, stating that much of her concern was the result of the company’s failure over time to respond to her inquiries and requests. Ms. Balsamo did not significantly dispute the conclusions expressed by the Registrar’s Inspector Purchase after his explanation of the basis for such conclusions. 13. Respondent’s representative Callahan presented the testimony of Dale Horine as the manager of the drywall company subcontracted by Shea Homes, who concurred with the Registrar’s inspector that the drywall in the home met industry standard. 14. Callahan also presented testimony by Clifford Gibson, who performed warranty and repair services for Shea Homes. He opined that all such repairs done to meet the CWO had been completed and met workmanship standards.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154.A provides, in relevant part, that a holder of a license or a person listed on a license shall not commit the following:

3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take 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 written directive from the Registrar.

The Citation and Complaint names A.A.C. R4-9-108 as the rule charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainants Balsamo must demonstrate by a preponderance of the evidence that Respondent Shea Homes violated any one of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). A “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 2. With respect to Respondent’s alleged unworkmanlike efforts, the evidence of record, while establishing results less than aesthetically perfect relative to the drywall and ceiling, does not support any determination that such results failed to meet the standards of workmanship required by the Registrar. Those standards are premised on the concept that “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Therefore, no violation of A.R.S. § 32-1154.A.3 and A.A.C. R4-9-108 has been proven. 3. With regard to the violation alleged of A.R.S. § 32-1154.A.23, the undersigned concludes on the evidence herein that Respondent did not fail to take, or fail to attempt to take, appropriate corrective action within a reasonable time after the Registrar’s Corrective Work Order was issued. Therefore, no proof of a violation of that statutory section has been made. 4. On the record made, and notwithstanding a certain failure on Respondent’s part to consistently respond to Complainants’ dissatisfaction with the items complained of, there has not been demonstrated any fraudulent or wrongful conduct on the part of Respondent, so no violation of A.R.S. § 32-1154.A.7 has been proven.

RECOMMENDED DECISION Based on the foregoing, IT IS RECOMMENDED that the CITATION in Case No. 99-1667, and the Complaint upon which it is based, be closed. Done this day, January 6, 2000.

______________________________________ Anthony Halas Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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