Notice of Review and Appeal Rights

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					                 BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                               STATE OF OREGON
                                     for the
                      CONSTRUCTION CONTRACTORS BOARD


In the Matter of the Arbitration between:

JENNIFER M. EBERHARD-YORK,                                                File No: 74292-115
Complainant
                                                             AMENDED1 ARBITRATION AWARD
and

AMBURN INVESTMENT, LLC,
Respondent


                                        HISTORY OF THE CASE

       Complainant Jennifer M. Eberhard-York filed this complaint with the Construction
Contractors Board (CCB) on January 30, 2008, alleging that respondent Amburn Investment,
LLC, doing business as Adaptive Homes, breached a contract to build a house in Klamath Falls,
Oregon.

       On September 11, 2008, the CCB referred this complaint for binding arbitration to the
Office of Administrative Hearings (OAH) pursuant to ORS 701.148 and 701.149 and Oregon
Administrative Rules (OAR) 812-004-0590. Neither party requested a contested case hearing.

        On September 22, 2008, the OAH served a Notice of Arbitration Hearing on the parties,
setting the matter for arbitration on December 3, 2008, and including a copy of the
administrative rules contained in OAR chapter 812, division 10. On October 22, 2008, both
parties complainant participated in a telephone prehearing conference. Respondent did not
participate in the conference.

      The arbitration proceeded as scheduled in Eugene, Oregon, before Arbitrator James W.
Han. Complainant appeared and testified. Gary H. York also testified for complainant.
Respondent's general manager Brad Olson appeared and testified for respondent. Bud Rennels
and Randy Macemore also testified for respondent.

        The record consists of Exhibits 1 through 169 and C1 through C19, which were admitted
into evidence at hearing without objection. Exhibits R1 through R4 were not received into the
record because respondent did not timely submit them.




1
  Changes to the original Arbitration Award issued January 2, 2009, are designated as follows: deleted language is
struckthrough and underlined; new language is in bold italic.

Eberhard-York v. Amburn Investment, LLC, CCB File No. 74292-115
Page 1 of 4
                                              FINDINGS

       On August 26, 2008, and September 24, 2008, respondent and complainant, respectively,
signed a settlement agreement and substituted contract replacing all previous contractual
agreements between the parties. (Ex. 168 to 169.) Of the nine dispute items listed in the
settlement agreement, only items 1, 2, 6, 8, and 9 remain in dispute.

Items 1 and 9: Siding and Flashing

        Respondent improperly installed siding on the garage and the right side of the house. The
bottom edge of the garage siding did not extend down past the top of the garage slab and allowed
water to drain into the garage. The vertical garage siding joints were not properly overlapped on
top of the studs. On the home's right side, the siding did not properly overlap the foundation.

        The settlement agreement provided that respondent shall re-cut any siding edges that are
not at least one inch above the roofing or whose edges are jagged; install flashings under the
bottom of the siding where it meets the concrete foundation and paint exposed portions of the
flashing to match the siding; and correct two small holes on the siding. Respondent performed
the corrections according to the settlement agreement and installed trim and a belly band around
the house. Complainant did not allow respondent to paint the exposed flashing.

       At the hearing, complainant argued that the flashing, the belly band, and the trim should
not have been installed because they are not aesthetic and they void the siding manufacturer's
warranty. Although complainant may not like their appearance, the siding manufacturer's
application instructions allow for flashing between the siding and masonry. Belly bands and trim
are commonly used and will not void the siding warranty as long as proper caulking and painting
prevents water from infiltrating behind the trim.

        Complainant also contends that respondent should pay for the removal and replacement
of the siding throughout her house. Complainant has the burden of proving by a preponderance
of the evidence that respondent improperly installed the siding in other parts of the house besides
the garage and right side. Complainant did not carry that burden.

      Complainant did not establish that she is entitled to damages for items 1 and 9. No
damages will be awarded for these items.

Item 2: Bathtub Leak

        The kitchen wall below the upstairs whirlpool bathtub was damaged after complainant
overfilled the tub. A plumber found evidence of a possible water leak around the whirlpool and
the home inspector suggested a leak may be allowing water in from the exterior or from the tub.
Complainant acknowledged that she did not know whether the damage was due to the overflow
or to a leak. Respondent's plumbers found no leak when they investigated complainant's
complaint.

      Complainant did not establish that respondent's work was the cause of any water damage.
No damages will be awarded for this item.



Eberhard-York v. Amburn Investment, LLC, CCB File No. 74292-115
Page 2 of 4
Item 6: Exhaust Fan and Heat Lamp

       Complainant operates an adult foster care home at the subject house. Complainant
wanted a strong fan in the downstairs bathroom to handle the strong odors produced by the
home's highly-medicated residents.

        Respondent's contract, Addendum A-1 Custom Electrical Selections (ex. 28), specified
that there would be "one light per bath—separate from fan and heat." The contract also called
for installation of an exhaust fan in each bathroom, not a combination light and fan unit. During
a walk-through with the electrical contractor before the electrical installation, complainant
emphasized that she wanted separate lamp and fan fixtures in the downstairs bathroom operated
by a single switch. She also asked to upgrade the fan in the downstairs bathroom.

        Instead of installing a separate upgraded fan, respondent installed a combination light and
fan unit in the downstairs bathroom. Complainant was not satisfied with the installation because
the fan is set behind the light in the ceiling and, although the fan was upgraded, the fan is not as
effective as it would have been if it were a separate unit.

        Complainant submitted a contractor's estimate to replace the single lamp and fan unit and
install a dimming switch for $410. The dimming switch was not part of the contract between
complainant and respondent. Respondent offered no evidence of a different cost to replace the
existing fixture. Complainant is entitled to an award for this item but not the cost of installing
the dimming switch. Exercising my equitable authority, I will award $350 for this item.

Item 8: Wet Stamps

       Complainant contended that respondent should have provided wet-stamped engineering
foundation plans as evidence that a professional engineer inspected the plans and approved them.
The county asked respondent for wet-stamped plans because the interior brace wall did not
comply with the code. Respondent did not provide wet-stamped plans but brought the wall into
compliance with the code and the county building department issued a final occupancy permit.

       Complainant did not establish that respondent was obligated to provide a wet-stamped
copy of the plans to complainant. Complainants have not proved—or even claimed—that
respondent's foundation work was defective. Complainant failed to show that she incurred any
damages relating to the lack of the wet-stamped plans or to the foundation installation itself.
Accordingly, complainant is not entitled to an award of damages for this item.

        Based on the foregoing, and in accordance with ORS chapter 701 and OAR chapter 812,
division 10, I conclude that respondent's installation of a combination lamp and fan in the
downstairs bathroom damaged complainant in the amount of $350. Complainant is also entitled
to recover the $50 processing fee. Therefore, I hereby enter the following:




Eberhard-York v. Amburn Investment, LLC, CCB File No. 74292-115
Page 3 of 4
                                               AWARD

        Respondent shall pay to complainant $350 plus the $50 CCB processing fee, for a total of
$400.


Dated this 6th day of March, 2009




                                                    James W. Han, Arbitrator




Eberhard-York v. Amburn Investment, LLC, CCB File No. 74292-115
Page 4 of 4

				
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