ALJDEC decisions subject to certification as final

2016A-3902-ROC · Registrar of Contractors · 2017-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Allen Yant,

COMPLAINANT,

v.

Eternity Homes LLC,

License No: 183637

RESPONDENT.

No. 2016A-3902-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2017 with the record held open until April 26, 2017.

APPEARANCES: Tony Cullum, Esq. appeared on behalf of Complainant Gregory Allen Yant. Nick Patton, Esq. appeared on behalf of Respondent Eternity Homes LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

On February 15, 2017, the Registrar of Contractors, (hereinafter

“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on April 4, 2017, at the Office of Administrative Hearings.

Respondent Eternity Homes LLC, (hereinafter “Eternity Homes”), holds

license number 183637 issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the citation and complaint.

Through the citation, the Registrar alleges that Eternity Homes may have

violated A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). The citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Eternity Homes’s license.

5. On or about June 4, 2014, Complainant and Respondent entered into a

contract for the construction of a new home located at 3335 Hilltop Drive, Lakeside, AZ 85929.

6. In September of 2014, Respondent began work on Complainant’s home.

On or about December 19, 2015, Respondent stopped work on Complainant’s home.

7. On or about September 12, 2016, the Registrar received a complaint from Complainant alleging workmanship on Respondent’s part.

8. On November 9, 2016, Investigator Chris Allison, (hereinafter “Investigator Allison”), performed a job-site inspection.

9. On January 6, 2017, Investigator Allison issued a directive that provides, in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 21, 2017.

You are hereby directed to correct the following violations by appropriate means:

Item 1 – Poor Workmanship

Concrete on front porch it spalling and/or pitting. Correct by appropriate means.

Item 2 – Poor Workmanship

Panels in doors have shrunk exposing unfinished wood on edges. Correct by appropriate means.

Item 3 – Poor Workmanship

Grout for brick fireplace in upstairs living room has excessive discoloration. Correct by appropriate means.

Item 4 – Poor Workmanship

Exterior trim for front door is misaligned, has exposed screws, and saw marks. Correct by appropriate means.

Item 5 – Poor Workmanship

There is a hole in concrete at patio stairwell gate. Correct by appropriate means.

Item 6 – Poor Workmanship

Transition from brick backsplash to countertops in kitchen is unfinished. Correct by appropriate means.

Item 7 – Poor Workmanship

The back patio has a negative slope into the home. Correct by appropriate means.

Item 8 – Poor Workmanship

there were cracks in excess of 3/32" width or 1/8" vertical displacemetn or compound cracks in excess or 1/16" in width are not acceptable. Correct by appropriate means

Item 9 – Poor Workmanship

There are gaps in the interior beams of the living room. Correct by appropriate means.

10. On January 24, 2017, Investigator Allison conducted a compliance

inspection. Investigator Allison’s January 24, 2017 compliance inspection notes provide, in relevant part, as follows:

items 2 and 6 are compliant. 3, 4, and 9 corrected but not compliant. 1, 5, 7, and 8 were not corrected due to weather constraints.

11. On January 26, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22).

12. A hearing was held on April 4, 2017.

13. At hearing, Investigator Allison testified that directive items 1, 5, 7 and 8 involved concrete issues. Investigator Allison testified that he told the Respondent that he should wait for more favorable weather to fix the concrete. He stated that Respondent should not have attempted to repair items 1, 5, 7 and 8 during the winter. Investigator Allison testified that if Respondent repaired the non-concrete items, the Registrar would not issue a citation because Investigator Allison knew that the weather was not conductive for concrete repairs. However, Investigator Allison testified that the Registrar proceeded with the citation because Respondent did not repair all of the non-concrete items.

14. Complainant’s position was that Respondent should have repaired the concrete items in the winter because item number 7 involved a negative slope of the concrete which caused water to drain toward the home and inside the home. In support of its position, Complainant offered into evidence the procedures used by Respondent’s concrete manufacturer to repair concrete in colder temperatures.

15. Complainant argued that Respondent is a professional contractor and should not have caused further damage to the fireplace when attempting to fix another stone. Complainant contended Respondent is a professional contractor and should have known what part or what side of the exterior trim needed to be repaired. Additionally, Complainant contended that Respondent should have known which beams in the living room fell below workmanship standards.

16. Respondent’s position was that it did not attempt to fix the concrete issues, items 1, 5, 7 and 8 because it was the winter season and Investigator Allison advised him not to repair those items during the winter.

17. Respondent also contended that Investigator Allison concluded that Respondent fixed item number 3 in his compliance inspection report. Respondent contended that although Investigator Allison found that Respondent caused discoloration to a neighboring stone, the adjacent stone was not a part of the directive and Respondent should be provided with a new opportunity to fix the adjacent stone.

18. Respondent argued that it was not given a fair opportunity to repair item 4 because although the directive stated that the exterior trim was not fixed, only the left side was discussed as needing repair at the jobsite inspection. Respondent contended that Investigator Allison noted in his compliance inspection notes that the right side was misaligned. Respondent contended that it could not be responsible for the right side because only the left side was discussed at the job site inspection.

19. Respondent also contended that it was not given a fair opportunity to repair item 9. Respondent contended that it repaired the areas of the beams which were photographed and discussed at the job site inspection. Respondent contended that it should not have been required to review every beam in the house and determine which beams needed repair. Respondent contended that Investigator Allison should have been more specific about which beams needed to be repaired.

20. Respondent’s qualifying party also testified that Complainant cancelled several appointments to make repairs. However, Respondent’s qualifying party testified that he made repairs at the home during the timeframe of the directive.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence presented at hearing established that the concrete on the front porch was spalling and/or pitting, the grout for the brick fireplace in the upstairs living room had excessive discoloration, the exterior trim for front door is misaligned, has exposed screws, and saw marks, there was a hole in concrete at patio stairwell gate, the back patio has a negative slope into the home, there were cracks in excess of 3#2” width or 1/8” vertical displacement or compound cracks in excess of 1/16” in width , and there were gaps in the interior beams of the living room due to Respondent’s actions. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Regarding a violation of A.R.S. § 32-1154(A)(22), it was undisputed that items 1, 5, 7 and 8 involved concrete issues. The evidence presented at hearing established that the investigator informed the Respondent that he should wait until warmer weather to fix items 1, 5, 7 and 8. I find that Respondent had valid justification for failing to comply with the directive with regard to items 1, 5, 7 and 8. The investigator provided credible testimony that he would not have proceeded with the complaint it Respondent would have repaired the non-concrete items, because the concrete items should not be repaired in the winter.

The evidence established at hearing that Respondent did not repair items 3, 4 and 9 within the timeframe of the directive. Although Investigator Allison concluded that item 3 was corrected, he also concluded that Respondent was not in compliance with minimum workmanship standards. Respondent is a professional contractor and is responsible for making repairs without causing further damage. Respondent was directed to repair the discoloration of the brick fireplace and caused additional discoloration. The directive stated that the exterior trim for the front door was misaligned and that there were gaps in the interior beams of the living room. I find that the contractor had sufficient information to correct the items that did not meet minimum workmanship standards. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that Eternity Homes LLC fully comply with the terms of the written Corrective Order issued in this matter within 30 days of the effective date of the Registrar’s Order.

If the Registrar of Contractors receives and accepts written proof that Eternity Homes LLC has fully complied with the terms of the written Corrective Work Order issued in this matter within 30 days of the effective date of the Registrar’s Order, then this matter shall be closed.

If the Registrar of Contractors does not receive and accept written proof the Eternity Homes LLC has fully complied with the terms of the written Corrective Work Order issued in this matter within 30 days of the effective date of the Registrar’s Order, then commencing on the 31st day of the effective date of the Registrar’s Order, License No. 183637 of Eternity Homes LLC, that License No. 183637 of Eternity Homes LLC shall be suspended for a period of five days.

It is further recommended that if Eternity Homes LLC provides acceptable written evidence it has been denied reasonable access to Gregory Allen Yant’s property after the effective date of this Order, then the above-provided License suspension shall not take place and this matter shall be closed.

It is further recommended, in addition to the above-provided penalties, if any, that Eternity Homes LLC pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Eternity Homes 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 Eternity Homes LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Eternity Homes LLC, 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, May 9, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors