ALJDEC decisions subject to certification as final
2016A-4716-CHC-ROC · Registrar of Contractors · 2017-11-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Deborah L Day,
COMPLAINANT,
v.
Carlson Homes Construction LLC,
License No: 171734
RESPONDENT.
No. 2016A-4716-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 12, 2017
APPEARANCES: Complainant Deborah L. Day appeared on behalf of herself. Gary Carlson appeared on behalf of Respondent Carlson Homes Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On August 25, 2017, the Registrar of Contractors, (hereinafter
“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on October 12, 2017, at the Office of Administrative Hearings.
Respondent Carlson Homes LLC, (hereinafter “Carlson Homes”), holds
license number 171734 issued by the Registrar.
3. Gary Carlson is the qualifying party for Carlson Homes.
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 Carlson 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 Carlson Homes’s license.
5. On or about June 4, 2015, Complainant and Respondent entered into a
contract for the construction of a new home located at 15645 E. Thistle Drive, Fountain Hills, AZ 85268.
6. In June 2015, Respondent began work on Complainant’s home.
7. On or about August 15, 2016, Respondent stopped work on Complainant’s home.
8. On or about November 22, 2016, the Registrar received a complaint from Complainant alleging workmanship on Respondent’s part.
9. The complaint was initially assigned to Registrar Investigator Randy Cason. Later, the complaint was transferred to Investigator Steve Klein.
10. On June 23 2017, Investigator Steve Klein, (hereinafter “Investigator Klein”), performed a job-site inspection.
11. On June 26, 2017, Investigator Klein 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 July 21, 2017.
You are hereby directed to correct the following violations by appropriate means:
Complaint Item 1: Exterior Stucco - cracking, crumbling, chipping, multiple areas
Verified cracking around some windows and block walls where they meet the home.
Complaint Item 2: Exterior paint - house painted wrong color, not repainted. Numerous paint touchups over repairs not painted.
Verified exterior paint touch-ups are needed.
Respondent shall complete project per original contract agreement, properly executed
change orders.
Complaint Item 3: Drainage pipes protruding from exterior walls, inconsistent
Verified
Complaint Item 4: Driveway not sloped correctly at garage - water enters garage when it rains
Driveway does slope away from the overhead door, water tested and no leak was observed. However the man door did leak when tested.
Complaint Item 5: Garage floor - epoxy peeling, crack in slab
Crack is within ROCs workmanship standards, peeling and rough area near man door should be corrected.
Complaint Item 6: Garage trim, scupper over garage, fence, pool door - not painted
Respondent agreed to painting.
Complaint Item 7: Pavers cracked, chipped - front entry overspray on pavers, not cleaned
Verified 1 cracked paver near the entrance of the home and several with chips near the driveway entrance. Also verified stucco staining on pavers next to retaining wall.
Complaint Item 8: Guest bath drywall, kerf bead and soffit dented.
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 9: Master bath drywall at water closet and by shower repairs. Trim at closet door, paint over painters tape
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 10: Great room wall patch work showing through paint
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 11: Interior paint - numerous touchups at trim, baseboards, paint bleed through at ceiling
Respondent agreed to come back for touchups.
Complaint Item 14: Front entry door- stains on glass, cracks in wood
Verified sections of glass need to be cleaned, and joints should fit and be securely attached, as well as properly filled and sanded.
Complaint Item 15: Glass scratched on great room sliding doors, damaged during install
Verified scratches; if defects were reported within 10 of occupancy or can be observed within 15’ they should be corrected.
Complaint Item 16: Mailbox - painted wrong color, cannot get glue off from temporary numbers, purchased numbers not installed.
Respondent shall complete project per original contract agreement
Complaint Item 18: Interior hardware - paint not removed
Paint should be removed from hardware.
Complaint Item 19: Driveway border rock left uneven since did not return to paint house
Respondent agreed to correct
Complaint Item 20: Garage left with construction debris – even inside wall control opener.
Respondent agreed to remove paint cans.
Complaint Item 21: Windows are separated from walls around windows. Stucco cracks around them.
Verified cracking around some windows
Complaint Item 23: Slider door rubber stopper cracked
Verified sliding glass door stop is cracked.
Complaint Item 24: Front door weather stripping has gap
Verified light can be seen through front door weather stripping,
Complaint Item 25: Rear fence by a/c unit rusting all over
Respondent agreed to correct.
Complaint Item 26: Drywall in great room ceiling splitting
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 27: Drywall in master bedroom still uneven as is other areas of the house which were repaired or done properly
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 28: Plant lights were never cleaned up from painter overspray
Verified overspray.
Complaint Item 29: Driveway wall was left unpainted on vacant lot side.
Verified painting is needed
Complaint Item 30: Electrical outlets (outside boxes) were left filled with paint or construction debris.
Verified paint needs to be cleaned from electrical boxes.
Complaint Item 31: Guest room ceiling drywall line or crack?
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 32: Driveway lights in ground loose, landscaper was informed.
Verified lights need adjustment and tightening
Complaint Item 33: Master bedroom ceiling drywall uneven.
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 34: Drywall lines/seams visible throughout the house.
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 35: Drywall nails visible throughout the house.
Contractor should repair nail pops, seam lines, and other hairline cracks onetime within the first year of occupancy.
Complaint Item 36: Front railing rusting around pool.
Respondent agreed to correct.
Complaint Item 40: The sides of the trim in the house have /glue on them and some are improperly painted.
Respondent agreed to come back for touchups.
Complaint Item 41: Spots of exterior paint is peeling, near pool equipment.
Respondent agreed to come back for touchups.
Complaint Item 44: Trim in garage around garage door and exit door are left unfinished and unpainted, rough edges, need repair and paint.
Respondent agreed to come back for touchups.
Complaint Item 45: Garage floor edge trim is unpainted.
Respondent agreed to come back for touchups.
Complaint Item 48: Railing is too short by pool and rusting in several places. Rust on metal screen around a/c unit.
Home passed city building inspection, Respondent agree to paint.
Complaint Item 49: Master shower faucet plate was dinged by plumber when he fixed the broken valve.
Respondent agreed to correct.
Complaint Item 50: Master shower handle has cut in it.
Respondent agreed to correct.
Complaint Item 54: Outdoor outlets are filthy, covered with stucco and construction material and some sealed shut.
Verified
Complaint Item 55: Pantry electrical panel unable to screw into wall.
Panel should be secured
Complaint Item 58: Pavers were never cleaned after construction, none of them, in addition to overspray and stains left by construction workers.
Verified
Complaint Item 60: Front door inside hand rail loose. (Left)
Verified
Complaint Item 61: Electrical switch plate push buttons stuck, den, front door.
Verified
Complaint Item 65: Outdoor outlet by garbage pails wobbles, moves.
Should be secured.
Complaint Item 68: Pool door gate rusting, needs repair.
Respondent agreed to correct.
Complaint Item 70: Outside fire alarm not painted.
Respondent agreed to correct.
Complaint Item 77: Bathroom sinks have stoppers too far down.
Respondent agreed to correct.
Complaint Item 81: The weather stripping on the door that goes into my garage has come off for the second time. Gary Carlson repaired it once himself, and obviously needs to hire a professional to fix it permanently. His impromptu fixes do not last- as with the linen closet door which he has repaired himself four times.
Respondent agreed to correct.
12. On July 27, 2017, Investigator Klein conducted a compliance inspection. Inspector Klein’s July 27, 2017 jobsite inspection notes provide, in relevant part, as follows:
Compliance Findings:
Complaint Item 1: Exterior Stucco - cracking, crumbling, chipping, multiple areas
Verified cracking at block wall where they meet the home.
Complaint Item 2: Exterior paint - house painted wrong color,
Respondent shall complete project per original contract agreement, properly executed
change orders.
Complainant states she has documentation stating color change.
Complaint Item 3: Drainage pipes protruding from exterior walls, inconsistent
Paint touch-up needed
Complaint Item 7: Pavers cracked, chipped - front entry overspray on pavers, not cleaned
Verified 1 cracked paver near the entrance of the home. Also verified stucco staining on pavers next to retaining wall, front porch and split face block near entry.
Complaint Item 8: Guest bath drywall, kerf bead and soffit dented.
Not corrected
Complaint Item 10: Great room wall patch work showing through paint
Paint touch up sheen varies up after drywall repairs were made.
Complaint Item 14: Front entry door- stains on glass, cracks in wood
Verified section of glass need to be cleaned,
Complaint Item 18: Interior hardware - paint not removed
Paint should be removed from hardware.
Complaint Item 24: Front door weather stripping has gap
Verified light can be seen through front door weather stripping,
Complaint Item 26: Drywall in great room ceiling splitting
Paint touch up sheen varies up after drywall repairs were made.
Complaint Item 28: Plant lights were never cleaned up from painter overspray
Verified overspray.
Complaint Item 31: Guest room ceiling drywall line or crack?
Paint touch up sheen varies up after drywall repairs were made.
Complaint Item 32: Driveway lights in ground loose, landscaper was informed.
Verified light need adjustment and tightening
Complaint Item 34: Drywall lines/seams visible throughout the house.
Paint touch up sheen varies up after drywall repairs were made.
Complaint Item 40: The sides of the trim in the house have /glue on them and some are improperly painted.
Door trim miter joints in hall need to filled.
Complaint Item 45: Garage floor edge trim is unpainted.
Respondent agreed to come back for touchups.
Complaint Item 49: Master shower faucet plate was dinged by plumber when he fixed the broken valve.
Respondent agreed to correct.
Complaint Item 50: Master shower handle has cut in it.
Respondent agreed to correct.
Complaint Item 55: Pantry electrical panel unable to screw into wall.
Panel should be secured
Complaint Item 68: Pool door gate rusting, needs repair.
Finish touch up doesn’t match.
Complaint Item 70: Outside fire alarm not painted.
Respondent agreed to correct.
Complaint Item 77: Bathroom sinks have stoppers too far down.
Respondent agreed to correct.
13. On July 31, 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).
14. A hearing was held on October 12, 2017.
15. At hearing, Investigator Klein testified that he conducted a prehearing inspection on the Friday prior to hearing. Investigator testified that based upon his observations, there were additional items from the Directive which were appropriately corrected by Carlson Homes. Investigator Klein testified that Complaint Items 1, 3, 18, 28, 32, 45, 49, 50 and 70 were appropriately corrected by Carlson Homes.
16. Complainant contended that Respondent performed poor work in the construction of her home. Complainant contended that she provided Respondent with multiple opportunities to correct his poor work. Complainant stated that she does not want Respondent performing additional work to her home.
17. Respondent contended that although Complainant originally wanted her home painted Taupe, Complainant later stated that she wanted her home painted gray. See Exhibits 1 and 2. Respondent argued that Complainant consistently changing her mind about the work that she wanted performed on her home.
18. Complainant contended that she only contemplated changing the color to gray, but later expressed she wanted her home painted Taupe.
19. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 1, 2017. Such prior License record reflects that Respondent’s License No. 171734 is current and that Respondent has had no prior discipline. Such prior License record shows that there is one open complaint against Respondent’s license. Respondent’s lack of prior discipline is considered a mitigating factor in imposing discipline.
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 violation 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 preponderance of the evidence shows that the issues found by Investigator Klein constituted workmanship issues with the new home construction. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
The preponderance of the evidence shows that Respondent appropriately corrected Complaint Items 1, 3, 18, 28, 32, 45, 49, 50 and 70.
The preponderance of the evidence shows that Complainant requested that Respondent paint her home gray. Therefore, Respondent did not violate A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 by painting the exterior of Complainant’s home gray.
The preponderance of the evidence shows that Respondent failed to appropriately correct Complaint items 7, 8, 10, 14, 24, 26, 31, 34, 40, 55, 68 and 77.
Therefore, Complainant established that Respondent failed to comply with the directive without valid justification in violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Carlson Homes Construction, LLC, License No: 171734
for a period of one (1) day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, November 1, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors