ALJDEC

99F-2597-ROC · Registrar of Contractors · 1999-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 1999 APPEARANCES: Craig and Shelly Richardson, Complainants, in their own behalf Billy Johnson, President, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact In November 1997, the Complainants moved into their custom home in Cave Creek, Arizona, which had been built by, and purchased from, the Respondent. The contract between the parties provided in part that:

“BUYER understand (sic) that any extra work requested shall be done only upon approval by the SELLER of a WRITTEN CHANGE ORDER REQUEST and receipt of payment in full.” The Complainants were under time pressure to close on the home by a certain time. Prior to closing the Complainants noted that the wood portion of the French doors leading outside from a bedroom and from the living room had been painted along with the interior of the home. The Complainants had wanted to stain the wood themselves and asked if the doors could be corrected by removing the paint. They were informed this could not be done without damage to the wood veneer and the Complainants closed on the house as scheduled with the French doors remaining painted. The home has three 19 foot long, 15 inch diameter decorative wooden beams (poles) across the family room ceiling and one vertical beam in the living room. Additionally there are three similar wooden poles approximately 10 feet long holding the back patio roof and two wooden poles holding the front patio roof. The wood which is pine, is originally from Utah. The Complainants paid $2,000.00 extra for the four interior beams. After closing on the house, the Complainants installed a mantle approximately four to five feet long over the fireplace by using a leftover portion of a wooden beam having been told they could use it, by one of the Respondent’s employees. According to the Complainant, the mantle was to have been installed by the Respondent but because of the time constraints on the closing, the Complainant decided to do the work himself after closing. At the time of installation in the home, the poles had an unspecified number of holes from wood boring beetles. The wood for the fireplace mantle shows the greatest post installation activity because heat apparently causes the beetles to bore out of the wood. Since being installed, the mantle has numerous new (up to 12), bore holes. The old bore holes can be distinguished because the inside of the hole is darkened by a varnish which was previously applied. The new holes do not have this darkened area. There are many varieties of wood boring beetles. However, most types of beetles ultimately will leave treated or dry wood. The period of time that a beetle may remain in a cut and treated log is dependent on a variety of factors (condition of the wood, heat, dryness). The life cycle of a beetle can be two to three years although under certain circumstances it may take up to 15 years for some larvae to develop. One publication (Exhibit 10), gives up to 30 years as the possible time before the emergence of a beetle from wood. Generally most wood boring beetles cause insignificant structural damage and often have left the wood after a year. The Powderpost beetle is an exception to the above general rule. It may infest and re-infest dry, seasoned or untreated wood. They are considered second only to termites in their wood destruction capacity. Only the larvae feed off the wood. Evidence of their presence are tiny pinprick openings that perforate the infested wood. Infestations will die out over time. The starch and moisture content of the wood are relevant to the extent and length of infestation, and the consequent damage that may be done to the wood. Kiln drying of wood prior to use avoids the future infestation problems. In the Complainant’s case, the variety of beetle is unknown but it appears there are at least two because of the different sizes of the bore holes. One type of hole is up to a quarter of an inch in diameter and another is the size of a pinprick which is found in the vertical pine beam in the living room. The Complainants are concerned that these smaller holes evidence the Powderpost beetle. No beetles have been caught in order to ascertain the type(s). Ceiling beams one and three do not show extensive beetle activity. Ceiling beam two shows more bore holes than beams one and three. A window in the spare bedroom is approximately a ¼ inch out of square. This is after two attempts to correct it. The problem was not noted until after the Complainants purchased custom blinds which fit at the top of the window but rub on the right side toward the bottom of the window. The Complainants filed their complaint with the Registrar of Contractors (Registrar), on March 11, 1999. On June 8, 1999, Inspector Lewis King (King) performed an inspection at the Complainant’s home. On June 18, 1999, King issued a Corrective Work Order (CWO). On November 8, 1999, King performed a pre-hearing inspection. A number of items in the CWO have been corrected or are otherwise no longer at issue. Those items which were to be corrected and are still a matter of concern include the requirement that the Respondent correct the painted French doors and the out of square window. The Respondent was also to determine the cause of the wood boring beetles and correct by appropriate means. Efforts were made to correct the out of square window but it is still not considered satisfactory because the curtain continues to rub at the bottom of the window. The Respondent arranged for Carl Olson, (Olson), Associate Curator in the Entomology Department at the University of Arizona to look at the beetle problem at the Complainant’s home. Olson concluded that there were possibly three types of beetles involved in the various beams (round headed borers, flat headed borers and an unidentified type for the smaller holes). Olson also concluded that the damage to the Complainant’s wood was most likely cosmetic and that re-infestation of the wood in the Complainant’s home is unlikely once the beetles have exited the beams. The Respondent has offered to treat the wood by means of an aerosol injection application. The Complainants have a young child and do not want chemicals in their home. Conclusions Of Law The alleged violations concern A.R.S. §32-1154(A)(3) violation of any rule, specifically, A.A.C. R4-9-108 workmanship, (A)(7),wrongful or fraudulent act with substantial injury, and (A)(23), failure to take appropriate remedial action. The Complainants rely on two memoranda that were sent to the Respondent in September, 1997, prior to closing, wherein the Complainants state the French doors in question need to be stain grade wood. This request implies but does not necessarily establish that the doors should be stained rather than painted. The evidence of what constitutes stain grade wood was rather unclear aside from the assertion it should have a uniform grain and the styles and rails are not finger jointed. There was no specific evidence that the doors which were installed constitute stain grade doors, or if stain grade doors cost more than what was provided by the contract between the parties. There was no evidence of any extra payment made by the Complainants for the doors which they requested or received. The Respondent contends there was never any agreement that the Complainants would stain the French doors because if the staining was not done properly, the doors could warp, resulting in potential accusations against the Respondent. Given the lack of specific answers regarding what constitutes stain grade, whether the Complainants actually received stain grade, whether there is additional cost, and if so, whether the Complainants paid such cost as provided by the contract, coupled with the fact that the Complainants closed on the home knowing that the French doors would not be corrected, it is concluded that the evidence is insufficient to sustain a violation of any of the cited statutes on this issue. After various attempts to correct the bedroom window, it is still approximately ¼ of an inch out of square according to King. Although this appears to be a de minimis deviation, the evidence shows that the Complainants custom made blinds rub upon reaching the bottom of the window which will ultimately cause damage to the blinds. There was no evidence of any particular standard to be applied to the window deviation. Respondent urged that the Complainants contributed to the problem by failing to measure the middle and bottom of the window before ordering the custom made blinds. Although the condition needs to be corrected, the manner of correction is up to the Respondent or by mutual agreement of the parties. Violations of A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 and A.R.S. §32-1154(23) are established. The final issue concerns the wooden beams. The beams had numerous holes from wood boring beetles when they were first installed. This was obvious at the time of installation and apparently not a problem for the Complainants from an aesthetic point of view. The Complainants had no knowledge that at least some of the beams contained active beetles. After making his inspection, Olson did not want to speculate about whether the smaller holes evidenced the presence of Powderpost beetles because according to him, “…that leaves one wide open to trouble.”. To this extent it is apparent that no assurances can be given regarding the continued presence and possible future activity of any beetles which are or may be present. The Complainants’ concerns are valid and cannot be alleviated without some type of corrective action. Even though it is unlikely that there will be any significant damage in the future, no assurances can be given and the Complainants should not be required to wait apprehensively for an unspecified period of time before they can be assured all beetle activity has stopped. It is concluded that workmanship as used in A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 requires the Respondent to use appropriate building materials. That was not done in this case. The nature of the condition was unique and the Respondent made good faith attempts to determine the full nature of the cause and its extent. The inability to do so does not constitute violation of A.R.S. §32-1154(A)(23) under the unique facts of this case but the condition must now be corrected. The Complainants are not required to have the wood inside the home chemically treated and the interior beams will in all likelihood need to be replaced. The same objection is not accepted with respect to treatment of the exterior poles. The fireplace mantle was installed by the Complainants after closing and although the Respondent left the timber that was used, there was insufficient evidence that the Respondent was required to install the mantle as part of the contract. It is concluded that the Complainants bear the consequences of the use of wood that had been left over and the installation of the mantle after closing. Recommended Order In view of the foregoing it is recommended that commencing on the effective date of the Order entered in this matter, that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work by correcting the spare bedroom window, replacing the interior wood column and beams, excluding the mantle, with a non-infested column and beams and appropriately treating or replacing the outside columns. Done this day, November 18, 1999

_________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________ -----------------------

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