ALJDEC decisions subject to certification as final

2017A-989-CHC-ROC · Registrar of Contractors · 2017-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ivy Lynn Mitchell,

COMPLAINANT,

v.

Universal Homes Construction LLC,

License No:

159590

RESPONDENT.

No. 2017A-989-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 14, 2017

APPEARANCES: Ivy Lynn Mitchell, Complainant; Scott Contadino, Respondent and Qualifying Party, Joe Contadino, appearing as witnesses for the Respondent: Bob Anderson, Samuel Lopez, Interior Specialists, Inc., Jose Tanyo, Byran Scott, Sheelah Golugee, Kellie Gatewood, Scott Sanderfur and Ted Studder and Jim Dimond, Inspectors, AZ Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson.

_____________________________________________________________________

FINDINGS OF FACT

On the 27th day of June 2017, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing on August 8, 2017 which, upon motion granted July 18, 2017, was continued until August 14, 2017 at 1:00 p.m. at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.

Respondent Universal Homes Construction LLC , [hereinafter “Universal”] holds license number 159590 issued by the ROC. Scott Contadino is the Qualifying Party and owner.

Complainant Ivy Lynn Mitchell owns a newly built residence located at 6210 East Dutton Drive in Prescott Valley, Arizona that she purchased from Universal. On November 11, 2016, prior to closing on her home purchase, Complainant conducted a walkthrough of the residence with agents or employees of Universal whereupon it was discovered that a number of tiles in the floor of the home were not level (displaying “lippage”) and some tile were hollow.

On or about December 15, 2016, Complainant informed Universal of the issues with the tile installation. February 15, 2017, Universal informed Complainant that it would make repairs for 12 tiles and requested a date for repairs. On the same date, February 15, 2017, the Complainant filed her Complaint with the Registrar of Contractors [hereinafter “ROC”] which was received by ROC Investigations on February 21, 2017.

Upon receipt of the Complaint, ROC Sr. Inspector Dimond conducted an inspection of Complainant’s home on March 28, 2017. In attendance at the inspection was the Complainant Lyn Mitchell, ROC Investigator Ted Stodder (in training at the time) and Sr. ROC Inspector Jim Dimond. The respondent was not present.

After Mr. Dimond’s inspection, ROC issued a Directive to Universal on March 31, 2017, providing notice to Universal that Approximately 35 tiles were identified as being in excess of the allowable standard for vertical displacement, that one hollow tile was identified for correction and that several cracked or chipped tiles were also identified for correction. The Respondent was directed to correct the condition in an appropriate manner on or before April 15, 2017.

Universal’s inspected tile installation, in the opinion of Sr. Inspector Diamond, failed to meet minimum ROC workmanship standards.

On request of the Complainant, who was in the process of moving her belongings from her residence in Alabama to her residence at 6210 East Dutton Drive in Prescott Valley, Arizona, the correction date deadline for Universal was extended 10 days by Mr. Dimond, until June 25, 2017.

For reasons not clear in the record, Universal did not receive notice of the extension of time to conduct repairs and, on April 13, 2017, a crew from Universal appeared to conduct the repairs ordered in the Directive. The East Dutton Drive residence on April 13, 2017 was vacant and empty of any furnishings. Universal’s crew was unable to gain access because the Complainant was still in Alabama and not available to open the home to Universal for repairs.

On April 20, 2017, Universal’s crew returned to the East Dutton Drive residence in an effort to comply with the ROC Directive. However, by this time Complainant had moved into the home. The home was full of furniture and accessories. Inasmuch as Universal’s repairs required clear access to the floors without the rugs, furniture and accessories sitting on top of the areas needing repair, the crew from Universal could not gain access to conduct the floor repairs at this time.

Repair work was re-scheduled over a three day period in May 2017 to enable the Complainant to move sections of furniture to accommodate access for repairs.

On June 2, 2017, Mr. Dimond conducted a compliance inspection. At that inspection, Mr. Dimond found that although the condition of the floor is significantly improved, compliance has not been achieved inasmuch as four tiles still needed repair. Mr. Dimond forwarded his findings to ROC which thereafter issued its Citation against Universal charging:

A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3), and

A violation of A.R.S. § 32-1154(A)(22).

Ms. Ivy Lynn Mitchell testified that on June 2, 2017, Universal contacted her to set a time and date when repairs could be completed. Ms. Mitchell testified that she refused and continues to refuse access for repairs stating that she required the court to resolve the matter.

Ms. Mitchell asserts that the only way to repair her flooring is to re-tile the entire home. Ms. Mitchell demands that her entire home be retiled.

CONCLUSIONS OF LAW

Ms. Ivy Mitchell bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence shows that for the items in the ROC’s Directive, Universal’s work was not done in professional manner, which is a violation of Ariz. Admin Code section R4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3).

There is no evidence to support Complainant’s insistence that the only way to repair her floor is to completely re-tile the entire home. By its Directive, Universal was required to repair approximately 35 tiles identified as being in excess of the allowable standard for vertical displacement, one hollow tile was identified for correction and several cracked or chipped tiles were also identified for correction

The preponderance of the evidence shows that although Universal did comply with most of the required repairs, Universal did not comply with the ROC’s Directive as to four tiles.

Universal did contact Ms. Ivy Mitchell to try to schedule any repairs after it received the Directive and, the records shows, Universal did accomplish most of the repairs ordered.

Moreover, Universal did contact the Complainant after issuance of the ROC Citation for a date and time to conduct repairs, but the Complainant refused and continues to refuse access to Universal to complete repairs. As such, Universal has a valid justification for its failure to comply with the Directive. Therefore, Universal did not violate Ariz. Rev. Stat. section 32-1154(A)(22) as charged in the Citation.

Because Universal has violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3), its license could be suspended or revoked.

Considering the nature of the violations at issue, the Administrative Law Judge typically would recommend that Universal be given an opportunity to correct any workmanship or other deficiencies before imposing discipline against Universal. In light of the facts and circumstances of this matter however, including that Ms. Ivy Mitchell has refused access to Universal to be able to complete or correct its work, it is not appropriate to issue an Order requiring Universal to make the appropriate corrections, nor is it appropriate to suspend or revoke Universal’s license.

RECOMMENDED ORDER

IT IS RECOMMENDED that that the Citation in Case No 2017A-989-CHC-ROC be dismissed.

Done this day, August 31, 2017.

Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors