ALJDEC

99F-Y0075-ROC · Registrar of Contractors · 1999-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |(| | |JONATHAN W. LINES, |(|Case No.: Y99-0075 | | |(| | |Complainant, |(|Docket No.: 99F-Y0075-ROC | | |(| | |vs. |(| | | |(|Recommended | |License No. 073032, Class B of |(|Decision and Order | |Trademark Construction Co., Inc.,|(| | |d.b.a. J M W TRUSS AND COMPONENTS|(| | |(CORP), |(| | | |(| | |Respondent. |(| | | |(| | | |(| | | |(| | | |(| |

HEARING: May 25th, 1999; 9:00 a.m. Appearances: The Complainant appeared in his own behalf. The Respondent did not appear and was not represented. Administrative Law Judge: Grant Winston.

This matter was brought on for administrative hearing on Tuesday, May 25th, 1999, at 9:00 a.m. Testimony was heard and other evidence admitted to record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein, Trademark Construction Co., Inc., doing business as J M W Truss and Components, is, and during all times material hereto was, a contractor, licensed by and doing business in, the State of Arizona, holding Class B License Number 073032.

2. The Complainant herein, Jonathan Lines, is a contractor licensed by and doing business in the State of Arizona as well, being an officer of Lines and Lundgreen Roofing and Insulation, Inc., and Qualifying Party or Principal on all three of its licenses: Class C-42 License Number 069354; Class L-42 License Number 070448, and Class C-40 License Number 068260.

3. Complainant had his own residential home constructed in Yuma, Arizona, in 1997. The general contractor who constructed his home was Hall’s Custom Construction, not the Respondent. Nor was the Respondent involved in any aspect of the construction of Complainant’s home as a subcontractor. The only way by which the Respondent was associated with the construction of Complainant’s home was as a materialman, or supplier, of the trusses which others installed.

4. It was Complainant’s evidence at the hearing that when his uncle, Steve Lundgreen (of Lundgreen and Lines, and a Principal in their licenses), moved into the residence in August of 1997, he and Complainant noticed several cracks in the home’s ceiling. Complainant moved into the home in December of 1997.

5. Complainant contacted the general contractor about the cracks first. According to Complainant’s early testimony, the general contractor, Hall’s Custom Construction, requested that Complainant contact the Respondent in order that the Respondent could survey the situation and determine the cause of the cracks. However, later testimony from the Complainant reveals that the actual reason Complainant turned to the Respondent for remedy, and eventually filed the Complaint with the Registrar of Contractors against this Respondent rather than Hall’s, was because Fred Hall, of Hall’s, indicated to Complainant that he was uncomfortable with the idea of becoming involved in a dispute between two contractors, i.e., Lines and Lundgreen (Complainant) and J M W Truss and Components (Respondent), with whom he, Fred Hall, does business regularly. Thus, J M W Truss and Components became the Respondent in this case to preserve the comfort level of the general contractor who constructed Complainant’s home.

6. Respondent did come to the home to make repairs to the trusses, which occurred in July of 1998. Complainant vacated his home in order to be out of the way, and entrusted his house key to Hall’s Custom Construction, so that Respondent could have necessary ingress and egress. Respondent made repairs, and the repairs were made, as Complainant testified, to his 100% satisfaction.

7. Subsequent to these repairs being made, the other subcontractors, i.e., the drywaller and painter, had to return and redo the drywall and texturing and painting. Respondent paid the bills of these subcontractors this time, although not because of any undue damage caused by Respondent while repairing trusses. It was due only because of the fact that to reach the trusses to repair them, damage necessarily had to be caused to those materials covering them.

8. Additional ceiling cracks were noticed by Complainant around September or October of 1998. Again, Complainant first contacted his general contractor about this. Hall’s, in turn, contacted the Respondent, who requested that an independent third party inspect the home and render an opinion. Complainant produced hearsay evidence in the form of a letter purportedly from a City of Yuma Building Inspector. According to the letter, the cracking was caused by missing truss webbing and another truss failure. However, besides the fact that this letter is unsworn hearsay from someone who did not appear and testify, the letter does not state when the author conducted the inspection, and therefore entitled to little evidentiary weight.

9. Respondent returned and made additional repairs. However, the Respondent refused to pay the drywaller, or the lighting and electric company, who followed him to the house after his repairs were made to make their necessary repairs. Once again, this drywall and electric work would have been necessary following the truss repair work regardless of who did the repair work, and were not results of Respondent unnecessarily damaging the home. Complainant’s own company, Lines and Lundgreen, supplied additional insulation to replace that which was compromised by the Respondent who had to move it to reach the trusses.

10. Again, as to this second repair effort, the Complainant testified that the damage had been caused by the failure of the trusses, not by Respondent’s repair work. Complainant testified: “The damage was there because of the broken trusses. I don’t believe that they [Respondent’s workers] caused it when they were up there. I think that they were pretty careful. They provided some two-by-fours and stuff to walk on. My complaint is that the trusses didn’t perform, and that they broke on two, three separate occasions.” (Emphasis added.)

11. In other testimony the Complainant states that the repair work was not completely effective. However, Complainant’s testimony is ambiguous in relation to the question of whether the repair work was unsatisfactory because all the defective trusses were not corrected at the first, or first two efforts, or was unsatisfactory because at least one truss failed again after having been repaired. Taking all the evidence as a whole, there is not enough competent, credible evidence to find that the repairs to the trusses were unsatisfactory.

12. At hearing the Complainant testified that there is now one more crack that means another truss needs to be repaired. The same hearsay statement in the letter from City of Yuma Building Inspector seems to indicate that this is a repeat failure, by the words “Cracking of drywall and previous drywall repairs were visible from the interior of the home. These cracks and repairs appeared to be consistent with the location of the trusses that had been repaired previously.” Again, this hearsay statement does not state when the inspection was performed, or what knowledge of Respondent’s work this person possessed.

13. The drywaller and painter refused to return to do their work a third time, even if Respondent were to return first and do his work, because they have not been paid for the second trip to Complainant’s home.

14. Complainant is asking that the Respondent be made to pay the three contractors who performed work at his home, or supplied material to it, following the second trip by Respondent to repair trusses. These contractors and their bills are: Specialty Lighting and Electric (for rehanging, rebalancing ceiling fans and light fixtures): $123.13; Tom Lemons Drywalling: $350.00, and Complainant’s own company, Lines and Lundgreen, (for insulation material): $925.00. Complainant has not been out-of-pocket any of the amounts he has been billed as the bills are still unpaid.

15. Complainant also seeks an order compelling Respondent to produce a statement from his engineer verifying that now the trusses are structurally sound, and free of defect. Complainant had requested this statement from the Respondent before the hearing, but the Respondent had not produced it. Considering the trouble that the Complainant has had with the trusses, and his reasonably foreseeing the possibility that someday he might seek to sell his home, and in that event would have to make certain disclosures in connection with the sale, this is a reasonable request. However, there is no evidence that the engineer in question ever inspected the trusses, and especially no evidence that the engineer inspected the trusses immediately after the Respondent’s last repair work, or has inspected them to date. Thus it is conceivable that the engineer would require a visual inspection of the trusses before Respondent could comply with an order to provide such a statement of his engineer’s professional opinion. Nor is there evidence of how invasive the engineer’s visual inspection would need to be. That is to say, it is unknown to the record whether an engineer, before rendering professional opinion as to the trusses’ structural quality, would have to break or disturb part of the adjoining structures or materials in order to adequately inspect the trusses.

16. Interestingly, Complainant did not testify that he seeks to compel the Respondent to return a third time to fix the one last problem truss which he testified now remains. 17. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein is charged only with a possible violation of A.R.S. §32-1154.A.7. That law of contractors prohibits “The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

3. There are no facts supporting a finding of any “fruadulent” act by the Respondent.

4. Complainant, in his Complaint and testimony, seeks recovery from the Respondent in two forms. First, Complainant seeks monetary payment from Respondent to the three contractors who performed work at, or supplied materials to, Complainant’s home. Second, Complainant seeks from the Respondent an engineer’s statement to the effect that the trusses are now structurally sound, and free of defect.

5. The only acts the Respondent herein performed “as a contractor” were the repairs to the trusses. Acting as a materialman or supplier of trusses, without doing more, is not acting “as a contractor.” A.R.S. §32-1121.A.4. Topro Services, Inc. v. McCarthy Western Constructors, Inc., 856 F.Supp. 1461 (D.Colo. 1994)(construing Arizona statute cited); Porta House, Inc. v. Scottsdale Auto Lease, Inc., 120 Ariz. 115, 584 P.2d. 579 (Ariz.App.Div. 1, 1978).

6. The only possibility remaining, under the existing facts of this case, of any “wrongful” acts by the Respondent in performing this work would be failure to make repairs which were up to minimum workmanship standards. In the instant Citation and Complaint, however, this Respondent was not cited for violating A.R.S. §32-1154.A.3., by violating R4-9-108 (Workmanship Standards), in connection with any allegation of poor workmanship in making repair to the trusses.

7. There still remains one act of the Respondent in this case to be considered as a possible violation. That is his refusal to supply the Complainant, after having been requested by the Complainant to do so, a written statement from the Respondent’s engineer to the effect that the trusses are now structurally sound. This is an act by the licensee as a contractor. Clearly, the act is a wrongful refusal to provide a much-needed opinion as to the workmanship of Respondent as a contractor. The only remaining question on this point is: Does the Respondent’s refusal to provide this engineer’s opinion “result in [Complainant] being substantially injured,” as required by subsection 7.? It does. Absent the opinion of the engineer, the Complainant is exposed to the possibility of one day being frustrated in the attempt to sell his home. Moreover, if Complainant is not provided with this opinion now, it may be unobtainable at a later date. If the Respondent has adequately repaired the trusses, he should have no hesitancy in coming to provide the opinion letter.

Recommended Order

Wherefore, it is hereby recommended that the Respondent’s Class B License be suspended until such time as he has had his engineer inspect the repaired trusses (if he has not already done so), and issue the Complainant a letter to the effect that the repair work has rendered the subject trusses structurally sound in all engineering considerations. In the event the engineer requires to break or damage or disturb surrounding fixtures, structures or materials in order to view the repaired trusses before rendering a professional opinion, Respondent shall be responsible for the repair and replacement of those areas to satisfactory condition. It is further recommended that if, on or before the effective date of this order, the Respondent has provided the Complainant with the engineer’s opinion letter and proof of having done same to the agency, that no suspension of Respondent’s license take place, and Citation and Complaint No. Y99-0075, together with the Complaint on which it is based, be closed.

Dated this 4th day of June, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of June, 1999, to:

Michael P. Goldwater, Director Attn: Joyce Armijo or Valerie Hicks Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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