ALJDEC

99F-2265-ROC · Registrar of Contractors · 2000-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2000. APPEARANCES: COMPLAINANT: Frank Portera, on his own behalf. RESPONDENT: by Larry Day, vice-president and authorized representative.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on January 19, 2000, 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. Complainants Frank and Rose Portera (the Porteras) contracted with Respondent Forecast Home Sales, Inc., and Forecast Development of Arizona dba Forecast Group, LP (Forecast), Arizona Contractor’s License No. 100917, Class B, to construct their residence at 5505 North 103rd Avenue in Glendale, Arizona. Their move-in date was January 30, 1998. 2. On February 4, 1999, the Porteras filed a complaint with the Registrar of Contractors alleging deficiencies relative to drywall and painted surfaces, and leaking windows, as well as a discrepancy in the contract price. 3. Based on the complaint, the Registrar’s inspector John Ratcliff conducted a jobsite inspection on March 24, 1999, with both parties present, and then issued a Corrective Work Order (CWO) on March 31, 1999. 4. When certain of the matters addressed in the CWO were not administratively resolved, the Registrar issued CITATION AND COMPLAINT IN Case No. 99-2265, charging Respondent Forecast with possible violations of A.R.S. § 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship rule), .7, and .23. 5. Respondent timely filed its written answer on October 23, 1999, and with the issues thus joined, hearing was duly scheduled. 6. At hearing, Complainant Frank Portera appeared and testified, and offered Exhibits A and B, both admitted over Respondent’s objections, deemed by the undersigned to go to the weight rather than admissibility. 7. Respondent appeared through Larry Day, an officer of the corporation and the company’s authorized representative, who offered Exhibits 1 and 2, admitted without objection. 8. The Registrar’s inspector Ratcliff also provided testimony to explain his findings and conclusions based on his initial (March 24, 1999) and pre-hearing (January 19, 2000) jobsite inspections. 9. At the time of hearing, and upon consideration of information provided by the parties (and inspector Ratcliff), it was determined by the undersigned that the scope of the proceeding would be limited to the sole remaining workmanship issue, that of the leaking windows, itemized as “COMPLAINT #3 - WINDOWS LEAK” in the CWO, which required that: A) THE CONTRACTOR IS TO WATER TEST ALL WINDOWS AND MAKE ANY AND ALL CORRECTIONS NECESSARY TO ENSURE THAT THE WINDOWS DO NOT LEAK. B) THE CONTRACTOR IS TO REPAIR ANY DAMAGE DUE TO THE LEAKING OF THE WINDOWS. 10. Based on his most recent inspection on January 19, 2000, inspector Ratcliff understood there to be three leaking windows of concern to the Complainants: in the living room, the master bedroom, and the second floor bedroom (facing south). These three were the only windows he specifically inspected on that date. 11. The inspector determined that although there was evidence that Respondent had apparently water tested and attempted correction to some extent, and some “normal” leakage would be otherwise acceptable, the degree to which the windows leaked still did not meet minimal workmanship standards, and resultant water damage remained evident. 12. Inspector Ratcliff therefore opined that further correction was necessary by Respondent to determine and repair the cause of the leaks and water damage in each window, by appropriate means or methods to be chosen by the contractor, and whether or not the original source of the leak was a manufacturing defect or an installation deficiency. 13. The inspector also understood that Respondent had arranged for a onsite meeting with Respondent’s construction foreman, the window manufacturer’s representative, and Complainant on January 20, 2000, the day after hearing. 14. Complainant Portera testified that although the three windows described by the inspector were the ones which leaked the most, there were three additional windows which leaked to a lesser extent: in the kitchen, family room, and office. 15. Portera, confirming a layman’s experience, but not expertise, with window manufacture and installation, also expressed concern that the windows installed in his residence were not the same type he had seen in the model home, but provided no evidence or basis for his opinion that his windows seemed inferior to those in the model home, or were otherwise improperly substituted contrary to the terms of his contract with Respondent. 16. Respondent’s representative Day testified to describe the company’s commitment to addressing warranty matters on the homes it had built, and to explain both the actions taken to date to address the leaking windows in Complainants’ home, and prospective actions to be taken in the immediate future to comply with the Registrar’s Corrective Work Order to stop the abnormal leaks and repair consequential damage.

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 must demonstrate by a preponderance of the evidence that Respondent violated any one or more 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. On the testimony and evidence of record, Complainant fails to demonstrate any wrongful or fraudulent conduct on the part of Respondent, so no violation of A.R.S. § 32-1154.A.7 has been proven. 3. The evidence is insufficient to demonstrate that Respondent failed to take reasonable efforts to comply with the Registrar’s Corrective Work Order, so no violation of A.R.S. § 32-1154.A.23 has been proven. 4. However, with respect to Respondent’s alleged unworkmanlike efforts, Complainants have sustained their burden of demonstrating violations of A.R.S. § 32-1154.A.3, and the workmanship standards of A.A.C. R4-9-108. 5. “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)). In this instance, a preponderance of the evidence demonstrates that six windows in the residence leak beyond normal tolerances, to a degree constituting a failure in workmanship, and further, that such leakage has resulted in consequential water damage of some readily apparent but unspecified extent.

6. Those six windows are found and concluded to be the three specified by the inspector (Finding 9) and the three described by Complainant (Finding 13), which individually require corrective action by appropriate means and methods to be chosen by Respondent or its duly- authorized agents in order to meet minimal workmanship standards in preventing leaks and repairing resultant water damage.

RECOMMENDED DECISION On the basis of the foregoing Findings of Fact and Conclusions of Law, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order to be entered in this matter, the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work as determined to be necessary hereinabove. IT IS FURTHER RECOMMENDED that, if Respondent accomplishes the required corrective work on or before the effective date of the Order, then the above license suspension shall not take place. Done this day, February 7, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, 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