ALJDEC decisions subject to certification as final

2018A-2519-ROC · Registrar of Contractors · 2019-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2019 APPEARANCES: Complainant Jeanette Lea Sweeney appeared on her own behalf. Daniel Warta appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Daniel Leigh Warta doing business as Dan Warta Construction (Respondent) is the holder of License No. 113836 issued by the Arizona Registrar of Contractors (Registrar). On or about February 15, 2018, Jeanette Lea Sweeney (Complainant) purchased a new home from Respondent. Escrow closed on March 2, 2018, and Complainant moved into the home on March 5, 2018. On or about June 4, 2018, the Registrar received a complaint from Complainant against Respondent alleging workmanship issues on the home. The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32- 1154(E) 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 September 10th, 2018.

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

Item 3- According to AZ statutes 32-1121.A(5&6) they are in violation since they sold a spec home less than 2 years per statute and the sales contract did not list the licensed contractors name and license number do (sic) therefore they are not entitled to the exemption. The sellers did not properly list the contractor information on the sales documents and they do not qualify for the licensure exemption and therefore committed a violation of ARS 32-1151, contracting without a license. The complainant’s can file an unlicensed complaint against the 3 individuals in Anchorage if they desire. It is not the respondent’s responsibility to list his information on the sales documents and therefore there is no violation on behalf of the respondent and this item is listed on this directive as a courtesy to the parties. Item 6-Laminate flooring in living room is lifting at corners and separating seams. The respondent is to correct the condition in an appropriate manner. Item 7-Master and 3rd bedroom windows do not slide properly on the track. The respondent is to correct the condition in an appropriate manner. Item 9- Shower in master bath, inside shower where the grout meets the tile floors all of the grout at the bottom is cracked. The respondent is correct the condition in an appropriate manner. Item 10- Self glided closing drawers do not operate properly. Several of the cabinet doors are not adjusted properly and there is a gap when closing. The respondent is to correct the condition one time in the first year and homeowner maintenance after that. Item 11- Back yard was not properly graded and there is ponding water. The condition does not conform with IRC code R401.3 (6” fall in 10’). The respondent is to correct the condition in an appropriate manner. Item 13- Back sliding glass door is not installed properly and is off center in frame door will not shut properly. The respondent is to correct the condition in an appropriate manner one time in the first year, homeowner maintenance after that. Item 14- Large deck on back of home-underneath deck is not painted showing raw unfinished stucco The respondent is to correct the condition in an appropriate manner. Item 16- Carpet in master bedroom, there are many seams with the product install which should not be the case so carpet was not measured properly and it looks like they used several pieces of remnants to carpet the bedroom. Carpet is also buckling and not stretched properly. The respondent is to correct the condition in an appropriate manner. Item 17- Screen missing from master shower bath window The respondent is to correct the condition in an appropriate manner. Item 18- Kitchen outlet not installed properly many gaps between tile wall and outlets. The respondent is to correct the condition in an appropriate manner. Item 21- Back staircase leading off deck the stringer has completely come off and the stairs are sinking. The respondent is to correct the condition in an appropriate manner. Item 22- Tub/shower combo may not have a supporting deck as it is spongy and moves a lot. The respondent is to correct the condition in an appropriate manner. Item 23- There are several miscellaneous paint issues throughout the home, missing paint. The respondent is to correct the condition in an appropriate manner. The following items are from an addendum list received via email on July 1, 2018. Numerous items are duplicates and are not re-addressed. The only items below are items added after the initial inspection: Item 25- Corner bead in garage. The respondent is to correct the condition in an appropriate manner. Item 26- Stoop out of square This is at the rear deck and the respondent is to correct the condition in an appropriate manner. Item 27- No elbow on hot water overflow The installation does not comply with IRC P2406.6.1 and the respondent is to correct the condition in an appropriate manner. Item 33- Paint above the tile in the master shower The respondent is to correct the condition in an appropriate manner. Item 34- No caulk at the toilet The water closet does not conform to IRC P2705.1(3) and the respondent is to correct the condition in an appropriate manner. Item 35- 2nd bath no caulk at the toilet. The water closet does not conform to IRC P2705.1(3) and the respondent is to correct the condition in an appropriate manner. Item 41- No interior or exterior doors are sealed top and bottom all read must be sealed or warranty void. The respondent is to correct the condition in an appropriate manner.

On or about September 4, 2018, the Registrar received an addendum to the complaint alleging additional workmanship issues on the home. After a subsequent jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 20, 2019.

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

Complaint Item 44: Ceiling fans- chains don’t work, can’t adjust speed The respondent is to correct the condition in an appropriate manner. Complaint Item 48: Master shower entrance not tiled properly-niche out of plumb The respondent is to correct the condition in an appropriate manner. Complaint Item 50: Crawl space door paint peeling does not seal properly The respondent is to correct the condition in an appropriate manner. Complaint Item 51: Rear deck post twisting at top 7/16”/not sealed at stucco The respondent is to correct the condition in an appropriate manner. Complaint Item 53: Tub faucet doesn’t work properly The respondent is to correct the condition one time in an appropriate manner. Homeowner maintenance after that. Complaint Item 55: Finish on front door coming off The respondent is to correct the condition one time in an appropriate manner. Homeowner maintenance after that. Complaint Item 57: Rock on front garage coming off The respondent is to correct the condition in an appropriate manner Complaint Item 58: rusting black pipe on propane line The respondent is to correct the condition in an appropriate manner. Complaint Item 60: Screen netting in master office coming off The respondent is to correct the condition one time in an appropriate manner. Homeowner maintenance after that Complaint Item 63: Front porch water runs toward house it is also out of square and steps are 7 ¾” and 5 ½” and winder step is less than 12” The respondent is to correct the slope, step height and square in an appropriate manner. Complaint Item 65: USA cabinets replaced top doors scratched bottom door did not replace skins The respondent is to correct the condition in an appropriate manner. Complaint Item 67: Squeak on back deck, joist is cracked The respondent is to correct the cracked joist in an appropriate manner. Complaint Item 68: Replace damaged laminate planks damaged 3 more and worse issues The respondent is to correct the condition in an appropriate manner. The respondent should also confirm that the installation meets manufacturer specifications as it appears that the butt joint lap is too close to the adjacent plank which may be contributory to the flooring issue. Complaint Item 69: No paint on inside closet wall 2 closets not all inside paint repairs done The respondent is to correct the condition in an appropriate manner. Complaint Item 70: A lot of outlet boxes are crooked The respondent is to correct the condition in an appropriate manner. Complaint Item 71: Tile at kitchen window dips The respondent is to correct the sill tile in an appropriate manner. Complaint Item 72: Cracked grout in kitchen when beating on floor The respondent is to correct the condition in an appropriate manner. Complaint Item 72: Cracked grout in kitchen when beating on floor The respondent is to correct the condition in an appropriate manner.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directives, Respondent performed some of the work, but did not complete all of the items listed in the directives. After the deadlines in the directives expired, Investigator Dimond was notified the project was not completely repaired. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). Investigator Dimond testified as to his observations of the project during the jobsite inspections and prehearing inspection. Investigator Dimond acknowledged that none of the identified issues were structural issues and could be considered cosmetic. Complainant testified that when she purchased the home, it came with a two year warranty. Complainant stated that she had contacted Respondent regarding the issues she included in the complaint, but Respondent had not done anything to repair those issues. Complainant maintained that the things she has asked Respondent to fix are not frivolous and, having purchased a new home, she should not have to “eat” the cost of repairs. Complainant stated that after the directives were issued, she made the home available for repairs, but Respondent did not complete the work by the deadlines. As to the second directive, Complainant asserted that the deadline in the directive was January 20, 2019, and Respondent did not contact her until January 15, 2019, to address those issues. Complainant’s husband and daughter also testified as to their observations of workmanship issues in the home. Respondent testified that the home passed all necessary inspections from Yavapai County during the building process. Respondent asserted that he had not ignored Complainant’s reports of issues and that the home was structurally sound. Respondent implied that he had been denied access to the property when Complainant would not let painters do a final touch up, but asked why the drywall was not repaired first. Respondent acknowledged that the painters attempted to do those repairs on February 6, 2019, after the deadline on the second directive had expired. Administrative notice is taken of Respondent’s prior License record on May 3, 2019. Such prior License record reflects that Respondent’s License No. 113836 was first issued on May 9, 1996, and is current. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 113836 for a period of five days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 license, 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. 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 will be 40 days from the date of that certification. Done this day, May 3, 2019. /s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826