ALJDEC decisions subject to certification as final

2010A-308472030-ROC · Registrar of Contractors · 2013-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2013, at 8:00 a.m. APPEARANCES: Ronald E. Compton (hereinafter “Complainant”) appeared on his own behalf. David Barnett Karmel dba Homes by D K (hereinafter “Homes by DK,” “Mr. Karmel,” or “Karmel”) appeared through his attorney, Robert S. Wolkin, Esq., Robert S. Wolkin P.C. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT The Order Granting Request for Rehearing provided, in relevant part, as follows: On or about November 18, 2010, Respondent’s Counsel submitted to the Registrar a Request for Rehearing and/or Request for Compliance Hearing and/or Request for Re-inspection in this matter.

On December 6, 2010, the Registrar sent a copy of Respondent’s Request to Complainant, providing Complainant with an opportunity to file a written response thereto. However, as of the date of this Order, no response has been received.

Upon review and consideration of Respondent’s Request for Rehearing, as well as the entire file, and with good cause appearing, IT IS ORDERED that Respondent’s Request for Rehearing be GRANTED. IT IS FURTHER ORDERED that a full Rehearing be scheduled in the expedited course of docketing in the Tucson area.

A Notice of Rehearing will be issued in due course.

Homes by DK is the holder of License No. B-3.177695-R issued by the Registrar of Contractors. This is a residential matter where on or about May 27, 2008, Complainant purchased a residence that had been remodeled by Homes by DK. Complainant was dissatisfied with Homes by DK’s workmanship and filed a formal Complaint against Homes by DK with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted an onsite inspection. Inspector Allen issued a written Corrective Work Order on May 4, 2010, directing Homes by DK to perform designated corrective work on Complainant’s residence. The Corrective Work Order provided, in relevant part, as follows: 1. Allegation: [Pool] cracked & decking. The jobsite inspection found visible cracks and or crack repairs in the pool. Pool cracks were repaired as a part of this remodel project (apparently the pool was not re-plastered). I cannot confirm if these are the same repaired cracks or not. No action required. The pool deck cracks were less than 1/16” and acceptable.

2. Allegation: Pool motor Pool motor replaced. The jobsite inspection found the pump motor was replaced by another. No action required.

3. Allegation: Roof leaks repair & sealed. The jobsite inspection found recent roof repairs by this contractor and by others. David Karmel of Homes By DK claims that he only roofed the bathroom additions and re-coated the entire roof. Karmel has agreed to repair and paint the bedroom ceiling.

4. Allegation: Rear porch – reinstall porch roof. The jobsite inspection found a new porch roof by another. No action required.

5. Allegation: Back yard south brick patio area sinkholes. The jobsite inspection found uneven (sinking) pavers. Karmel claims that he did no work on these pavers. I see nothing in the purchase contract or other agreements regarding the pavers. No action required.

6. Allegation: Roof A/C start up (very loud-vibrates roof). The jobsite inspection found typical noise level and no vibrations. No action required.

7. Allegation: Rear back yard block wall major cracks. The jobsite inspection found cracks and spalling. Karmel claims that he painted the wall but did not plaster the wall. I see nothing in the agreements regarding plastering the rear yard wall. Contractor is to touch-up paint the wall to match the existing color.

8. Allegation: Front entrance no door bell. The jobsite inspection found no door bell at the front entry door of the house. There is a door bell at the front gate at the front yard wall. I see nothing in the agreements regarding the front door bell. No action required.

9. Allegation: West entrance gate no way to secure. The jobsite inspection found this gate locked and secured. No action required.

10. Allegation: West entrance gate out of plumb hitting wall. The jobsite inspection found the existing column is out of plumb. Karmel claims that he did not work on the column. I see nothing in the agreements regarding this column. No action required.

11. Allegation: West gate to back painting and repair. The jobsite inspection found a poor paint job with peeling paint. Contractor is to correct by appropriate means.

12. Allegation: East gate to back painting and repair (falling apart). The jobsite inspection found the gate sagging, loose posts, etc. Contractor is to correct by appropriate means. 13. Allegation: East & west side wood fence not secured (falls apart).The jobsite inspection found several loose pickets. Contractor is to correct by appropriate means.

14. Allegation: East side roof 4X4 beam rotted out . . . . The jobsite inspection found the rafter tail weathered and rotten. Karmel claims that he did no work on this rafter or roof (except re-coat the roof). I see nothing in the agreements regarding this rafter tail. No action required.

15. Allegation: House stucco cracks all over house / not repaired and repainted. The jobsite inspection found exterior stucco cracks wider than the allowed 1/16”. Contractor is to correct by appropriate means.

16. Allegation: Front electrical box coming apart. The jobsite inspection found stucco cracks at the box. Contractor is to correct by appropriate means.

17. Allegation: Water heater door no key. The jobsite inspection found the door locked. Karmel claims he provided all keys at closing. Mrs. Torres (complainant’s mother) claims that they did not get the H/W/H door key. I cannot confirm.

18. Allegation: Back porch GFI not operating. The jobsite inspection found the porch outlet is not working. Contractor is to correct by appropriate means.

19. Allegation: Back yard south/east on house hose faucet not connected to wall. The jobsite inspection found the unistrut at the hose bib loose at wall. Contractor is to correct by appropriate means.

20. Allegation: All over house cracks in wall. The jobsite inspection found acceptable hair line cracking to the interior walls. No action required.

21. Allegation: Kitchen grout around sink coming loose (missing). The jobsite inspection found cracked, loose grout. Contractor is to correct by appropriate means.

22. Allegation: Floor tiled areas grout and tile cracked (floor not sealed). The jobsite inspection found some cracked grout. Karmel has agreed to correct the grout and seal.

23. Allegation: Windows screens not installed. The jobsite inspection found missing screens. Karmel claims that he delivered all screens. Mrs. Torres claims that he did not deliver all screens. I cannot confirm.

24. Allegation: Master bath grout coming off wall & soap dish falling off. The jobsite inspection found cracked, missing grout. Contractor is to correct by appropriate means.

25. Allegation: Master bath door damaged from door stop. The jobsite inspection found a “crush” type indention in the door near the top hinge (possibly caused by a hinge type door stop). There is no door stop now. I cannot confirm who or what caused the indention in the door. No action required.

26. Allegation: Floor several areas not level. The jobsite inspection found an out of level area near the hall and hall bathroom. Karmel claims this was existing and that he performed no work in this area. I see nothing in the agreements regarding this out of level floor. No action required.

27. Allegation: All house door stops either missing, installed incorrectly. The jobsite inspection found some missing door stops with holes in the baseboards where it appears that door stops had once been. I cannot determine who or what caused the door stops to be missing. No action required.

Two new items were added during the jobsite inspection:

1a. Allegation: Southwest scupper needs repair. The jobsite inspection found the metal scupper is bent and the caulking needs corrected. Contractor is to correct by appropriate means.

2a. Allegation: Hall bath sink leak. The jobsite inspection found that another repaired the sink leak. No action required.

Inspector Allen testified that he conducted an onsite prehearing inspection on May 15, 2013. Inspector Allen stated that his original onsite inspection took place on April 21, 2010. Inspector Allen testified that he reviewed each item of the Corrective Work Order during his May 15, 2013 prehearing inspection. Inspector Allen testified that the swimming pool had been drained and that another contractor was working on the swimming pool. Inspector Allen testified that no action was required on this item in the Corrective Work Order. Inspector Allen testified that the swimming pool motor had been replaced by another in 2010. No action was required on this item in the Corrective Work Order. Inspector Allen testified that he observed that Complainant had caused a new roof to be installed over the entire residence. Inspector Allen stated that Homes by DK asserted that it had performed the directed repairs to the bedroom ceiling. Inspector Allen testified that both parties agreed that Homes by DK had returned to Complainant’s residence and repaired the damaged ceiling in the bedroom. Inspector Allen testified that the rear porch roof had been replaced by another contractor prior to his first onsite inspection. Inspector Allen stated that no action was required for this item. Inspector Allen testified that he found nothing in the parties’ purchase contract that required Homes by DK to perform any work on the pavers and that no action was required on this item. Inspector Allen stated that during his prehearing inspection, he observed that Complainant had removed all of the pavers from Complainant’s yard. Inspector Allen testified that during his original inspection, he observed that the roof air conditioning system was functioning properly. Inspector Allen stated that no action was required for this item. Inspector Allen testified that he observed unacceptable cracking and spalling on the rear yard block wall. Inspector Allen stated that Homes by DK asserted that it only painted the existing block wall. Inspector Allen testified that he saw nothing in the parties’ purchase agreement that required Homes by DK to plaster the existing block wall. Inspector Allen stated that the Corrective Work Order directed Homes by DK to touch-up the paint on the wall. Inspector Allen testified that he observed that the wall was in still in need of painting. Inspector Allen stated that no paint was put on the blue portion of the block wall. Inspector Allen testified that there was no door bell on the front entry door of the residence. Inspector Allen stated that he observed that there was a door bell on the front gate on the front yard wall. Inspector Allen testified that no action was required for this item. Inspector Allen testified that he observed that the west entry gate was locked and secured during his first onsite inspection. Inspector Allen stated that no action was required for this item. Inspector Allen testified that he observed that the front entrance gate column was out-of-plumb. Inspector Allen stated that Homes by DK denied working on the column. Inspector Allen testified that he could find nothing in the parties’ purchase agreement regarding the column. Inspector Allen stated that no action was required for this item. Inspector Allen testified that he observed that the paint on the west entrance gate was peeling during his first onsite inspector. Inspector Allen stated that this item had been corrected. Inspector Allen testified that during his first inspection, he observed that the east gate on the rear wall had peeling paint and that the gate was sagging with loose posts. Inspector Allen stated that the east gate was still sagging with loose posts. Inspector Allen testified that apparently some painting had been done on the east gate. Inspector Allen stated that if Homes by DK had repaired the sagging gate and the loose posts, the repairs for the east gate had failed. Inspector Allen testified that he observed several loose pickets on the wood fence on the east and west side of Complainant’s yard. Inspector Allen stated that he directed Homes by DK to properly correct the loose pickets. Inspector Allen stated that during his prehearing inspection, he observed that there were still loose pickets and broken posts on the wood fence. Inspector Allen testified that if Homes by DK had repaired the loose pickets and broken posts, its repairs had failed. Inspector Allen testified that he observed that there was a rotten rafter tail on the east side roof. Inspector Allen stated that Homes by DK denied working on the rafter tail. Inspector Allen testified that he saw nothing in the parties’ purchase agreement regarding the rotted rafter tail. Inspector Allen stated that no corrective action was required for this item. Inspector Allen testified that during his original inspection, he observed exterior stucco cracks wider than 1/16 inch. Inspector Allen stated that during his prehearing inspection, he observed that there “was a lot of spalling” and some cracks that were now wider that 1/8th of an inch in width. Inspector Allen testified that if Homes by DK had repaired the stucco cracks, its repairs were inadequate and had failed. Inspector Allen testified that during his original inspection, he observed unacceptable stucco cracking near the electrical box. Inspector Allen stated that the stucco around the electrical box looked the same as at his prehearing inspection. Inspector Allen testified that if Homes by DK had repaired the stucco cracks around the electrical box, its repair was inadequate and had failed. Inspector Allen testified that he was unable to confirm Complainant’s allegation regarding the key to the water heater door. Inspector Allen stated that no action was required for this item. Inspector Allen testified that he observed that the back porch GFI was not operational during his original onsite inspection. Inspector Allen stated that this item had been corrected. Inspector Allen testified that he observed a loose hose bib during his original onsite inspection. Inspector Allen stated that this item had been corrected. Inspector Allen stated that during his original inspection, he observed hairline cracking in the interior plaster in Complainant’s residence. No action was required on this item in the Corrective Work Order. Inspector Allen stated that the cracking in the interior plaster had now increased with some cracks now over 1/16th of an inch. Inspector Allen testified that no action by Homes by DK was required for this item because there were no cracks in the interior plaster wider than 1/16th of inch during the first year of occupancy. Inspector Allen testified that during his original inspection, he observed that the grout around the kitchen sink had cracked. Inspector Allen stated that he observed that the grout around the kitchen sink was still cracked during his prehearing inspection. Inspector Allen testified that the corrective action performed by Homes by DK had failed. Inspector Allen acknowledged that the grout cracking around the sink could be corrected by caulking if the caulking was performed properly. Inspector Allen testified that during his original inspection, he observed a cracked tile and cracked grout in Complainant’s floor. Inspector Allen stated that the cracked tile had been replaced but that the grout around the replacement tile had cracked. Inspector Allen testified that the cracked grout requires correction by Homes by DK. Inspector Allen testified that he was unable to confirm Complainant’s allegations regarding missing window screens and that no action was required for this item. Inspector Allen stated that the window screens are now in the possession of the homeowner but that not all of the window screens have been installed. Inspector Allen testified that that the loose soap dish and the cracked grout in the master bath had been corrected. Inspector Allen testified that he was unable to confirm Complainant’s allegation regarding damage to the master bath door. Inspector Allen stated that no corrective action was required for this item. Inspector Allen testified that he observed out-of-level areas in the floor. Homes by DK asserted that the out-of-level floor was pre-existing and that Homes by DK performed no work on the out-of-level floor. Inspector Allen stated that he was unable to confirm the allegation and that no corrective action was required for this item. Inspector Allen testified that he was unable to confirm Complainant’s allegation regarding missing door stops. Inspector Allen stated that Complainant informed him that this item was no longer at issue. Inspector Allen testified that the southwest scupper on Complainant’s roof had been corrected. Inspector Allen testified that the hall bath sink leak had been corrected before his first inspection. Inspector Allen stated that no action was required for this item. Inspector Allen testified that during his first inspection, he observed that the swimming pool had been painted rather than re-plastered. Inspector Allen stated that the swimming pool was “quite an older swimming pool” and that this was an older house. Inspector Allen testified that the swimming pool was empty at the time of his prehearing inspection. Inspector Allen stated that he observed numerous cracks in the empty swimming pool. Inspector Allen testified that he had no idea what caused the cracks. Inspector Allen testified that Homes by DK had informed him that the only roofing work that had been performed was on the roof over the master bathroom addition to the east side of the residence and painting the existing roof. Inspector Allen testified that he did not know if Homes by DK performed any crack repairs on Complainant’s block wall. Inspector Allen stated that he observed some cracks that were “quite large” and that the spalling was “quite bad.” Inspector Allen testified that any repairs that may have been performed by Homes by DK were inadequate and had failed. Inspector Allen testified that he did observe that repairs had been made on the exterior stucco on Complainant’s residence. Inspector Allen stated that if Homes by DK had repaired the exterior stucco, the repairs were inadequate and had failed. Inspector Allen testified that Homes by DK informed him that it had not performed any stucco work on the block wall. Inspector Allen testified that Homes by DK acknowledged that it had painted the gold portion of the block wall. Inspector Allen testified that he was expecting Homes by DK to correct the peeling paint on the gold portion of the block wall. Inspector Allen stated that if Homes by DK did not perform any work on the blue portion of the block wall, that he would not expect corrective work on the blue portion of the block wall. Inspector Allen’s testimony is found to be credible. David B. Karmel (hereinafter “Mr. Karmel”) testified that he is the owner and Qualifying Party for Homes by DK. Mr. Karmel stated that Homes by DK performed a “cosmetic” remodel on Complainant’s residence. Mr. Karmel testified that Homes by DK constructed a new master bathroom addition for the residence as part of the remodeling project. Mr. Karmel testified that Homes by DK retained Falcon Pools to perform crack repairs and get the swimming pool “up and running.” Mr. Karmel stated that he did not recall if the swimming pool had been painted. Mr. Karmel testified that Homes by DK did not construct the swimming pool. Mr. Karmel testified that Homes by DK corrected the metal scupper on the roof. Mr. Karmel stated that Homes by DK corrected the water damage in the bedroom ceiling. Mr. Karmel testified that the ceiling “was fine” when the repair was completed. Mr. Karmel testified that Homes by DK painted the gold-colored portions of the block wall. Mr. Karmel stated that Homes by DK performed no work of any kind on the blue-colored portions of the block wall. Mr. Karmel testified that exterior stucco repairs were performed by T R Plastering.[1] Mr. Karmel stated he did not know the method utilized by T R Plastering to repair the stucco cracks. Mr. Karmel testified that Homes by DK painted Complainant’s roof. Mr. Karmel stated that he did not know why Complainant experienced problems with his roof. Mr. Karmel testified that it could be the result of lack of maintenance. Complainant testified that the cosmetic finish on his residence wore off quickly. Complainant stated that he spent most of his time overseas and that when he returned to his residence for short periods of time, he observed numerous items that required repair. Complainant testified that he would not have purchased the residence had he realized that Homes by DK had only performed cosmetic work on the residence. Complainant testified that the swimming pool looked brand new when he bought the house. Complainant stated that he was currently having the swimming pool re-plastered. Complainant testified that he had the roof on his residence totally replaced by a licensed contractor. Complainant testified that the wood portion of the yard fence is falling down. Complainant stated that Homes by DK should be responsible for correcting the problems with the wood fence. Complainant testified that the exterior stucco cracks on his reside were “shameful.” Complainant acknowledged that he had not had a home inspection before he purchased the house. Complainant stated that he was “strapped” for time when he purchased the house. Complainant testified that Homes by DK performed corrective work on some of the items set forth in the Corrective Work Order. Complainant stated that Homes by DK could gain access to his residence while he was overseas through his mother or through Glen Gutierrez.[2] Complainant testified that Glen Gutierrez is a contractor whom he had hired to perform work at his residence. Complainant testified that despite the ready access, Homes by DK failed to fully comply with the terms of the Corrective Work Order. Complainant testified that he purchased the residence in June of 2008. Complainant stated that he first occupied the house on an “R & R” several months later. Complainant testified that the house was vacant when he was not residing in it. Mr. Karmel testified that Homes by DK remodeled Complainant’s house and added a master bathroom. Mr. Karmel testified that Homes by DK remodeled Complainant’s residence, including new drywall, new flooring, new cabinets, cosmetic work on the swimming pool, new appliances, and adding a new master bathroom. Mr. Karmel stated that the master bathroom was approximately 75 square feet. Mr. Karmel testified that Homes by DK painted the gold portions of the block wall. Mr. Karmel denied that Homes by DK performed any stucco work on the gold portions of the block wall. Mr. Karmel stated that Homes by DK performed no painting or stucco work on the blue portions of the block wall. Mr. Karmel testified that Homes by DK fully complied with the terms of the Corrective Work Order. Mr. Karmel stated that the residence was approximately 90 years old. Mr. Karmel testified that the stucco cracking now present on Complainant’s residence was new stucco cracking. Mr. Karmel stated that the corrective work on Complainant’s residence was performed approximately three years prior to the date of the hearing. Mr. Karmel testified that Homes by DK had difficulty gaining access to the residence through Complainant’s mother or Mr. Gutierrez. Mr. Karmel stated that Complainant’s mother was ill and difficult to get a response from. Mr. Karmel testified that Homes by DK had no other access to the residence other than through Complainant’s mother or Mr. Gutierrez. Mr. Karmel testified that all of the repairs required by the Corrective Work Order were performed “immediately” once Homes by DK was permitted into Complainant’s residence. Mr. Karmel stated that the corrective work was inspected and approved by Complainant’s representative, Mr. Gutierrez. Mr. Karmel testified that he believed that his contractor’s license had been revoked as a result of the default Decision and Order that was entered in this matter. Administrative notice is taken of Homes by DK’s prior license record as reflected on the Registrar of Contractors’ public website on May 29, 2013. Such prior license record reflects that License No. B-3.177695-R of Homes by DK was suspended for non-renewal on October 1, 2010 and that the license expired on October 1, 2012. License No. B-3.177695-R of Homes by DK had previously been suspended for non-renewal from October 1, 2008, through November 13, 2008, and suspended for non-renewal from October 1, 2004, through October 12, 2004. There was no indication on the Registrar of Contractors’ public website that License No. B-3.177695-R of Homes by DK was disciplined in any way as a result of the Default Decision and Order that was initially entered in this matter. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The painting on the gold portion of the block wall has failed and is peeling. The east gate is sagging, with loose posts. The exterior stucco on Complainant’s residence displays numerous cracks in excess of 1/16th of an inch and some cracks in excess of 1/8th of an inch. There are stucco cracks in excess of 1/16th of an inch around the electrical box, the grout around the replaced floor tile has cracked and requires correction, the grout around the kitchen sink has cracked and requires correction, and the wood fencing on the west and east side of the residence contains numerous loose pickets. The corrective action performed by Homes by DK was inadequate and failed to fully comply with the terms of the Corrective Work Order. This Tribunal concludes that Homes by DK violated the charged provisions of A.R.S. § 32-1154(A)(3),[3] namely, A.A.C. R4-9-108,[4] and A.R.S. § 32-1154(A)(23).[5] RECOMMENDed order

In view of the foregoing, it is recommended that on the effective date of the final Order in this matter, License No. B-3.177695-R of Homes by DK shall be revoked unless the Registrar of Contractors receives and accepts written proof of the following: • That Homes by DK has renewed License No. B-3.177695-R and fully complied with the terms of the Corrective Work Order, or • That David Barnett Karmel has obtained a new contractor’s license, in an appropriate classification, from the Registrar of Contractors and has fully complied with the terms of the Corrective Work Order, or • That Homes by DK has reached a financial resolution with the Complainant.

It is further recommended, in addition to the above-provided penalties, if any, that Homes by DK pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Homes by DK to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Homes by DK’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Homes by DK, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification

Done this day, June 3, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of T R Plastering LLC’s prior license record as reflected on the Registrar of Contractors’ public website on May 29, 2013. Such prior license record reflects that License No. C-38.226145- R of T R Plastering LLC was suspended for non-renewal on February 1, 2011, and that the license expired on February 1, 2012. [2] Administrative notice is taken of a search on the Registrar of Contractors’ public website on May 29, 2013. No license record could be located for Glen Gutierrez. [3] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [4] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[5] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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