ALJDEC decisions subject to certification as final

2018A-1814-CHC-ROC · Registrar of Contractors · 2018-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 2018, 9:00 A.M. APPEARANCES: Complainants Robert and Erzsebet Kovacs appeared on their own behalf; Butch Redmond, owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Redmond Construction, LLC (Respondent), is the holder of License Numbers 198045, 317917, and 231518 issued by the Registrar of Contractors (Registrar). 2. On or about April 19, 2018, Robert and Erzsebet Kovacs (Complainants) filed a Complaint against Respondent with the Registrar alleging poor work in connection with Respondent’s construction of a new home for Complainant in Fort Mojave, Arizona (“project”). 3. The Registrar performed an inspection of the project on May 1, 2018. Thereafter, the Registrar issued a Directive, dated May 21, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by June 11, 2018, as follows: Complaint Item 2: No shop drawing of case work and shelving for approval. Investigator’s Observation: On the approved drawings the General Notes # 6, states that "Contractor shall submit "Shop Drawings" of all case work and shelving to the owner prior to manufacturing for his approval". Per Wikipedia, the definition of "Shop Drawings" are (in part) as follows: SHOP DRAWINGS: A shop drawing is a drawing or set of drawings produced by the contractor, supplier, manufacturer, subcontractor, or fabricator.[1] Shop drawings are typically required for prefabricated components. Examples of these include: elevators, structural steel, trusses, pre- cast concrete, windows, appliances, CABINETS, air handling units, and millwork. Also critical are the installation and coordination shop drawings of the MEP trades such as sheet metal ductwork, piping, plumbing, fire protection, and electrical. Shop drawings are produced by contractors and suppliers under their contract with the owner. The shop drawing is the manufacturer’s or the contractor’s drawn version of information shown in the construction documents.[1] The shop drawing normally shows more detail than the construction documents. It is drawn to explain the fabrication and/or installation of the items to the manufacturer’s production crew or contractor's installation crews. The style of the shop drawing is usually very different from that of the architect’s drawing. The shop drawing’s primary emphasis is on the particular product or installation and excludes notation concerning other products and installations, unless integration with the subject product is necessary. RESPONDENT SHOULD COMPLY WITH THE TERMS OF THE CONTRACT AND APPROVED PLANS IN REGARDS TO PROVIDING SHOP DRAWINGS FOR THE HOMEOWNERS APPROVAL. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 3: Roof tile improperly installed. Investigator’s Observation: Two roof valley pans on the front of the house need to be re-worked so as to allow the roof tile to properly sit/nest on the adjacent tiles. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 6: Concrete floors uneven throughout the house. Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states that concrete floor shall be flat within 1/4 inch over a 10-ft area provided the diviation is gradual. Deviations, dips or sags over short distances and easily visible to the eye may be considered unacceptable. At the time of the onsite inspection the contractor had acknowledged there were issues with the floor and had been performing some grinding operations. There were still several areas in the bedrooms, kitchen, living room, etc. that the floors did not conform the workmanship standards. THE RESPONDENT SHOULD DETERMINE CAUSE AND PROPERLY CORRECT ANY AND ALL FLOOR VARIATIONS THAT EXCEED THE STANDARDS OF 1/4-INCH OVER TEN FEET. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 7: Concrete floors are cracked and elevating throughout the house. Investigator’s Observation: Cracked concrete floors in themselves are not necessarily a workmanship violation. Cracked interior floors that were always intended to receive floor coverings must be evaluated on a case by case situation and if that cracking is beyond "normal" or could present issues to the type of floor covering contractor to be installed then the floor covering contractor should bring those issues to the attention of the General Contractor and or homeowner. At this point the Respondent should properly continue to bring the "wavy" floors into compliance with the "flat within 1/4-inch in ten feet standard. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 8: Master bedroom and others unfinished. Investigator’s Observation: This is a house under construction. Respondent should properly continue construction to completion. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 10: Master bathroom wall missing insulation. Investigator’s Observation: This is a house under construction. The Respondent agreed to properly install the missing wall insulation at the same time that the roman tub is removed and reset. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 12: All closet doors installed incorrectly and crooked. Investigator’s Observation: This is a house under construction. Respondent should, through course of construction properly install, adjust and test ALL doors, windows, screens, cabinets, shower doors, etc. for proper alignment and operations. (Front bedroom door was noted to be out of plumb and moved toward open when left at a position of 45 degrees to open. Respondent should correct by appropriate methods. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 15: Guest bath shower missing door handle. Investigator’s Observation: This is a house under construction. Shower doors (both) typically have some form of handle to operate each door. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 16: Wall paint inconsistent throughout house. Investigator’s Observation: This is a house under construction. Wall paint appeared to be a typical application however there were areas that incorrect touch-up paint had been applied and needs to be corrected. Respondent acknowledged that the paint will need proper touch-up. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 17: Kitchen cabinets are the wrong size and not fitting correctly. Investigator’s Observation: This is a house under construction. See # 2 above in regards to "Shop Drawings", customer approval, etc. In addition there is an upper cabinet over the kitchen sink that has had a large square hole cut in the back of the cabinet for what I can only assume will be the source of power for a future kitchen sink light. That oversized cutout is poor workmanship and should be properly corrected. In addition, there is some improper misaligned filler pieces between the upper cabinets to the right of the kitchen sink. RESPONDENT SHOULD COMPLY WITH THE TERMS OF THE CONTRACT AND APPROVED PLANS IN REGARDS TO PROVIDING SHOP DRAWINGS FOR THE HOMEOWNERS APPROVAL. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 18: Patio doors not properly aligned. Investigator’s Observation: This is a house under construction. As stated in # 12 above. Respondent should properly adjust ALL doors, windows, screens, etc. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 22: Front door entry walls are not straight. Investigator’s Observation: The vaulted wall above the front entry was demonstrated to be out of plumb. The Respondent agreed to properly correct. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 23: Interior wall only have one coat of paint, not two. Investigator’s Observation: This is a house under construction. There was no evidence to substantiate only one coat of paint was applied. Typically there is a coat of primer applied and then a coat of paint and that constitutes two coats of paint. There was areas noted that incorrect paint was used to "touch-up" walls. Through the course of construction the contractor typically does a final walk-thru paint touch up however the house is not currently ready for that operation. RESPONDENT SHOULD PROPERLY DO ALL REQUIRED TOUCH-UP AT THE PROPER TIMES. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 24: Guest bathroom shower door isn't straight and does not close properly. Investigator’s Observation: This is a house under construction. As stated in # 12 above. Respondent should properly adjust all doors, window, screens, shower doors, etc. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 25: Master bath vanity top including the sinks were not approved and do not match the other bathroom. Investigator’s Observation: There is a specification on the 7/26/17 Secret Pass Plumbing estimate that indicates that the Master Bath lav's were to be "China White Oval Self Rimming. At the onsite inspection there were conflicting statements about the H/O wanting square undermount sinks and then square self rimming sinks as the tops would have to have been removed and re-fabricated for undermounts. The H/O states he did not want or approve solid white cultured marble countertops. Here again we come back to issue # 2 and Shop Drawings" for the H/O to approve. The Respondent has not presented any interior finish, selection documents indicating the bath fixtures styles, color, sink style and mounting method. No signed change orders have been presented indicating choices. RESPONDENT SHOULD COMPLY WITH THE TERMS OF THE CONTRACT AND APPROVED PLANS IN REGARDS TO PROVIDING SHOP DRAWINGS FOR THE HOMEOWNERS APPROVAL IN REGARDS TO VANITY TOPS AND SINKS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors. 4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated July 12, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for October 9, 2018, at 9:00 A.M. 6. At the October 9, 2018, hearing, Complainants Robert and Erzsebet Kovacs testified on their own behalf and presented the testimony of John Wood, Rick Schneider, and Kevan Stone. Respondent presented the testimony of Butch Redmond, owner, and Bryce Pennington, superintendent and project manager. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 1-34 and 37-58 and Respondent’s Exhibit 1.[1] 7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he conducted a compliance inspection on June 26, 2018, and determined that only Complaint items 2, 3, 10, 22, and 25 of the Directive had been corrected. He stated that he had not been back to the site since the compliance inspection. 8. Complainant Robert Kovacs testified of the myriad of issues with the project and presented photographs depicting many of the issues. (Complainants’ Exhibits 1-33). As it related to the Directive, he acknowledged that he had entered into an “Agreement between Customer and Contractor,” dated July 19, 2018, wherein the parties agreed that Respondent corrected Complaint items 9, 12, 15, 17, 18, and 24 of the Directive. (Complainants’ Exhibit 55).[2] However, he testified that in fact only Complaint items 9 and 24 had been corrected and that Complaint items 12, 15, 17, and 18 had not been resolved. He stated that he had signed the agreement before he had received a copy of the Investigator’s notes from the compliance inspection, and that once he had received those notes, he realized that the foregoing items had not been corrected after all. 9. Mr. Kovacs further testified that he had never prevented any core drilling of concrete or grinding by Respondent to address the concrete flooring issues. In fact, he stated he inquired by email on August 5, 2018, as to Respondent’s next steps to repair the concrete and that Respondent responded claiming Complainants had not accepted Respondent’s “approach” to resolve the concrete issue. (Complainant’s Exhibit 46). He stated he replied asking for clarification on the approach, (Complainant’s Exhibit 46), and there was no further response from Respondent. 10. John Wood, a neighbor of Complainant, testified on behalf of Complainant, as it related to the Directive, that the main issue was the concrete and that it was uneven and needed to be saw cut. 11. Rick Schneider, a neighbor of Complainant, testified on behalf of Complainant, as it related to the Directive, that the concrete was cracking but that he cautioned against removing the floor. He stated the concrete should be drilled first to determine the cause of the problem and that a geotechnical survey should be done. He further testified he did not believe that there was a problem with the concrete itself. 12. Kevan Stone, neighbor of Complainant, testified on behalf of Complainant, as it related to the Directive, that Complainants had limited understanding of the English language. She stated that items claimed to have been completed by Respondent were not in fact corrected. 13. Complainant Erzsebet Kovacs testified that Complainants’ belongings had to be put in storage due the delay of Respondent in completing the work. 14. Butch Redmond, owner of Respondent, testified on behalf of Respondent that he agreed that Complaint items 6, 7, 8, 16, and 23 of the Directive had not been corrected. He further testified that after the Investigator’s Compliance Inspection on June 26, 2018, Respondent worked for two weeks after which Complainant Robert Kovacs signed the Agreement between Customer and Contractor, dated July 19, 2018, agreeing that Complaint items 9, 12, 15, 17, 18, and 24 had been corrected and were accepted and that the concrete floor items (Complaint items 6 and 7) and painting items (Complaint items 8, 16, and 23) were not corrected. (Complainants’ Exhibit 55). He stated the parties had agreed to postpone the correction of the painting items in order to resolve the concrete issue first. With respect to Complaint items 12, 15, 17, and 18 referenced as corrected in the Agreement between Customer and Contractor, but that Complainants claimed were not in fact corrected, he testified that: with respect to item 12, Respondent corrected it by removing the drywall and fixed the frame but that Complainants just wanted a different styled door; that with respect to item 17, that Respondent corrected it by putting a cover over the upper cabinet hole and that Mr. Kovacs stated not to worry about the filler pieces because he would take care of it; and with respect to item 18, that Respondent corrected it by obtaining a new patio door but then determined that the problem was with the hinges which were changed to alleviate the problem. 15. Mr. Redmond further testified that Respondent had completed everything to obtain a Certificate of Occupancy. He stated that he had had workers grind the concrete foundation on or about April 26, 2018, for three days but that they told him they were told to stop grinding by Complainant because Complainant indicated to them that he was concerned that they were grinding more than an inch. He further stated that Complainants would not let him core drill or float the concrete floor. 16. Bryce Pennington, project manager and superintendent of Respondent, testified on behalf of Respondent that Respondent had performed a compression test. He further testified that with respect to Complaint item 15 in the Directive that Complainants claimed was not corrected, that there was no handle in the Kohler shower door that had been selected for the bathroom. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 3. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar. …

22. 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….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9- 108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. A.R.S. § 32-1154(A)(3). Complainants have presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The Investigator testified that Complaint items 2, 3, 10, 22, and 25 were corrected by Respondent but that the remaining uncorrected items in the Directive were not performed in a professional and workmanlike manner. With respect to those remaining items, Respondent did not dispute that Complaint items 6, 7, 8, 16, and 23 of the Directive were deficiencies and had not been corrected. With respect to the other 6 Complaint items, which were referenced in the Agreement between Customer and Contractor, dated July 19, 2018 (Complainants’ Exhibit 55), Complainants agreed that Complaint items 9 and 24 had been corrected but claimed that Complaint items 12, 15, 17 and 18 had not been corrected. 7. With respect to the remaining Directive items that are in dispute, Complaint items 12, 15, 17 and 18, the Tribunal finds that Complainants have failed to meet their burden to show that these items were not corrected by Respondent. The evidence was uncontradicted that Complainants initially agreed that these items were corrected by signing the Agreement between Customer and Contractor. The Tribunal was not persuaded that because English was their second language, Complainants did not fully understand what they were signing. Further, Complainants did not make clear why receipt of the Investigator’s notes, which were written before the corrective work was performed on these items, would somehow cause them to change their minds concerning whether these items had in fact been corrected. In any event, Respondent presented sufficient evidence to establish that it had also corrected these Complaint items 12, 15, 17 and 18. 8. A.R.S. § 32-1154(A)(22). Complainants have also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action without a valid justification. The evidence was uncontradicted that Respondent did not correct Complaint items 6, 7, 8, 16, and 23 of the Directive. With respect to the concrete floor items (Complaint items 6 and 7), Respondent in essence argued that there was a valid justification for not correcting those items because Complainants prevented it from grinding or floating the concrete surface or from core drilling. However, the evidence presented by Respondent did not establish such a valid justification. The hearsay statements of Respondent’s workers that Complainants told them to stop grinding is insufficient to refute Mr. Kovacs’ testimony that he never stopped anyone from performing grinding or floating or performing any other tests on the concrete. Further, Mr. Kovacs’ email of August 6, 2018, (Complainants’ Exhibit 46), well after the Directive deadline of June 11, 2018, evidenced that he was still inquiring of Respondent as to the next steps to repair the concrete. Respondent’s response, or lack thereof, did not establish that Complainants were preventing Respondent from proceeding with concrete repair at least at that point in time. (Complainants’ Exhibit 46). 9. The Tribunal acknowledges that the parties agreed to postpone the correction of the painting items (Complaint items 8, 16, and 23) until the correction of the concrete floor items (Complaint items 6 and 7) to avoid the effect of dust and debris from concrete repair on newly-painted surfaces. However, while such a postponement might have been logical, in doing so Respondent assumed the risk that the concrete repair might not proceed. Further, there was no evidence presented that Complainants ever prevented Respondent from moving forward with the correction of the painting items. Therefore, the Tribunal does not find that Respondent has presented a valid justification for not proceeding with the painting items. 10. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) (with respect to Complaint items 6, 7, 8, 16, and 23 of the Directive) and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Redmond Construction, LLC’s, License Numbers 198045, 317917, and 231518 are suspended for two days. 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 five days from the date of the certification. Done this day, October 29, 2018.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file. [2] The Investigator actually listed Complaint item 9 of the Directive concerning the master bathtub as an unsubstantiated item and consequently claimed no violation.

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