ALJDEC decisions subject to certification as final

2017A-4195-CHC-ROC · Registrar of Contractors · 2018-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Meichelle McDaniel,

COMPLAINANT,

Torel Building and Remodeling LLC ,

License No: 129905

RESPONDENT

No. 2017A-4195-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 18, 2017 with the record left open until December 19, 2017.

APPEARANCES: Complainant Meichelle McDaniel appeared on behalf of herself.

Chris Tortonello appeared on behalf of Respondent Torel Building and Remodeling, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about November 27, 2014, Complainant Meichelle McDaniel (Ms. McDaniel) entered into a new home construction contract with Respondent Torel Building and Remodeling LLC (“Torel”) for a house located at 25 Bucksin Lane, Sedona, AZ 86336.

2. In February 2015, Torel began construction. Torel last worked on the home in 2017.

3. On or about August 14, 2017, Ms. McDaniel filed a Complaint with the Registrar alleging poor workmanship on the part of Torel.

4. On August 29, 2017, Investigator Steve Philpot of the Registrar conducted an initial job site inspection.

5. On September 8, 2017, Investigator Philpot issued a Directive. The September 8, 2017 Directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on September 25, 2017.

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

Complaint Item 1: Roof leaking discovered 1/22/17 – Keefer Roofing didn’t “finish” the roof. Leak found in living room – Scuppers were causing leaks, roof wasn’t heat sealed, leak found no flashings.

Investigator’s Observation: This complaint item is substantiated. Evidence is present that rain water has and continues to penetrate the homes roof, windows and or walls in various areas throughout the home. Respondent shall determine the cause of the leaks and correct the condition, including corollary damage, by appropriate means.

Complaint Item 2: Roof leak discovered 3/23/17 in stairway to master bedroom, water dripping on floor sheet rock & paint cracked & bulging – ceiling & walls.

Complaint Item 3: Nails popping through in stairway to masters N W bedroom, wet sheetrock & paint bubbling near carpet NW bedroom 3/23/17

Complaint Item 4: Water stained sheetrock in SW bedroom. Paint had started to bubble 3/23/17

Complaint Item 5: Window frames on the inside of home are cracking in the corners, cracks in wall, SO in living room, NW wall 27 inch crack vertical 1/22/17

Complaint Item 7: Water damage showing in ceilings – master bedroom, stair way to master bedrooms, N W bedroom, hallway main floor , living room.

Complaint Item 8: Water damaged showing in walls in hallway, stairway to master bedroom, master bedroom (current)

Complaint Item 9: Large crack horizontal above garage door N. side in stucco – 8 ft ling, 1⁄2” to 1” wide (current5) July 8, 2017.

Complaint Item 10: Crack in stucco N. side bottom by garage door – Vertical 26 inches long (current) Aug 2017

Complaint Item 11: Cracks in stucco on walls of home (current) around windows front living room, SW bedroom, S wall, etc.

Complaint Item 12: Foundation cinder block leaking – 1/24/17 – outside South resealed landscaping & Stucco not fixed after sealant on stucco

Investigator’s Observation: This complaint item is partially substantiated. The foundation leak appears to be correct, however the sealant is still visible in some areas. See Jobsite photo 62 of 85. Respondent shall correct by appropriate means.

Complaint Item 14: Home inspection done on 4/5/17 – Mold growth in SW spare bedroom under window.

Investigator’s Observation: I am not a certified mold inspection and have no firsthand knowledge about mold. Evidence is present that rain water has and continues to penetrate the homes roof, windows and or walls in various areas throughout the home. Respondent shall determine the cause of the leaks and correct the condition, including corollary damage, by appropriate means.

Complaint Item 15: Stucco & debris in ventilation wells covering drainage pipe – possible mold.

Investigator’s Observation: This complaint item is partially substantiated. Debris is present and Respondent shall correct by appropriate means. I am not a certified mold inspection and have no firsthand knowledge about mold.

Complaint Item 16: (current) caulking is cracking on roof after repairs made by contractor subs new leak found.

Complaint Item 17: Mold in master bedroom wall, floor pad carpet – current water coming in and around windows.

Complaint Item 18: Mold found in garage, water damaged below master bedroom

Complaint Item 19: Mold inspection – canine marked all windows, main hallways, stairway hall to master bedroom, door to back patio.

Complaint Item 20: Caulking around outside window frame stucco cracked, Sub used DAB 3/26/17 – it has darkend & does not match house . Weep holes on windows are blocked.

Complaint Item 21: Floors popping in all three bedrooms. Loudest in SW bedroom.

Complaint Item 22: Thermal scan done 7/21/17 – shows water in master bedroom, stairway to master bedroom, garage, patio door.

Complaint Item 23: (Current) grout is powder & falling through crack in floors – living room, kitchen, mster bd, main hall, and laundry room.

Complaint Item 24: Nails popping through walls – above pantry- stairway to mstr bedroom main hall, N

Complaint Item 25: cracks in repairs in main hallway, stairway to master room, living room walls around windows (wtr leak 3/17)

Complaint Item 26: Doors leading to outside – frames showing stress cracks (indoor paint) front door is sagging.

Complaint Item 27: Vertical crack behind toilet in basement bath – corner 8/10/17 start at ceiling 37 inches, middle 12 inches, floor going up 6 inches ling.

Complaint Item 30: Visible leak bottom right corner of N window. All corners cracked inside (water).

Complaint Item 31: Subfloor does not touch wall in NW spare bedroom – 1inch of uncovered space.

Complaint Item 34: Visible lines in ceilings- water damage in living room/kitchen, main hall, master bedroom, stair way to master bed, NW spare bedroom.

Complaint Item 35: Visible lines in walls – water damage main hall, stairway to mster bedroom, master bedroom south wall.

6. On October 12, 2017, Investigator Philpot conducted a compliance job site inspection and concluded that Torel had not corrected all of the items listed in the Directive.

7. On October 17, 2017, the Registrar issued a Citation against Torel alleging that it violated A.R.S. 32-1154 (A)(3) and 32-1154(A)(22).

7. Torel filed a timely response to the Citation.

8. The matter was referred to the OAH.

9. A hearing was held on December 18, 2017.

10. Investigator Philpot conducted a prehearing inspection on December 15,

2017. Investigator Philpot concluded that all of the items on the Directive had been corrected except for items 3, 9, 11, 20, 21, 23, 24 and 26.

11. At hearing, Ms. McDaniel testified on her own behalf and presented the testimony of her daughter Marian McDaniel. Mr. Tortonello testified on behalf of Torel and presented the testimony of his wife Beth Tortonello. Investigator Philpot also testified at the hearing.

12. Ms. McDaniel’s position is that Torel’s work failed to meet minimum workmanship standards.

13. Mr. Tortonello contended that Torel did not correct the items listed in the Directive by the due date because he needed more time to correct the items. Mr. Tortonello contended that Ms. McDaniel changed her minds several times on the color selections and there were disagreements with the roofer.

14. Administrative notice is taken of Respondent’s prior License record on

January 8, 2018. Such prior License record reflects that Respondent’s License No. 129905 was first issued on December 15, 1997, and is current. Such prior License record also reflects that there are two open complaints and no resolved/settled/withdrawn complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

1154(A).

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.

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).

4. The preponderance of the evidence shows that Torel did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

5. The preponderance of the evidence shows that Torel violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

RECOMMENDed order

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 129905 of Torel Building and Remodeling, LLC shall be suspended for a period of one calendar day.

It is further recommended that the Registrar require Torel Building and Remodeling, LLC to pay the sum of $250.00 as a civil penalty.

It is further recommended that if Torel Building and Remodeling, LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Torel Building and Remodeling, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Torel Building and Remodeling, LLC, as defined in A.R.S. § 32-1101(A)(5), unless Torel Building and Remodeling, LLC tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

Done this day, December 22, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors