FINACT2018A-2966-ROC.pdf

2018A-2966-ROC · Registrar of Contractors · 2019-04-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Brandon Michael Abney and Laura A. Faircloth, Case No. 2018-2966 COMPLAINANTS, Docket No. 2018A-2966-ROC v. F H B Flagstaff Home Builder Inc, FINAL ADMINISTRATIVE DECISION License No. ROC 214887, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on May 12, 2019.

FINAL NOTE On page 2, line 4 replace “August 17 2018” with “August 17, 2018”. On page 9, line 11 replace “Mr. Atkinson Mr. Atkinson” with “Mr. Atkinson”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated April 2, 2019

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail April 2, 2019 to: Respondent F H B Flagstaff Home Builder Inc 12130 N Peaks Pkwy Flagstaff, AZ 86004

Respondent’s Attorney Tony S Cullum, Esq 14 E Dale Ave Flagstaff, AZ 86001 Complainants Brandon Michael Abney & Laura A. Faircloth 2200 N Curling Smoke Dr Flagstaff, AZ 86001

Complainant’s Attorney Jason J. Bliss, Esq. 123 N. San Francisco Street, 3rd Floor Flagstaff, AZ 86001 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant’s at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge

Case No. 2018-2966 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 3.14.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brandon Michael Abney and Laura A. No. 2018A-2966-ROC Faircloth, ADMINISTRATIVE LAW JUDGE COMPLAINANTS , DECISION v. F H B Flagstaff Home Builder, Inc., License No: ROC 214887, RESPONDENT.

HEARING: January 7, 2019, at 1:00 p.m. and February 25, 2019, at 1:00 p.m. APPEARANCES: Brandon Michael Abney and Laura A. Faircloth (“Complainants”) were represented by Jason J. Bliss, Esq., Aspey Watkins & Diesel, PLLC; F H B Flagstaff Home Builder, Inc. (“Respondent”) was represented by Tony S Cullum, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. According to the Registrar of Contractors’ (“the Registrar’s”) public website,

on or about December 20, 2005, the Registrar issued License No. ROC 214887 for

general dual KB-1 building contracting to Respondent.

2. On or about June 27, 2018, Complainants filed a complaint with the Registrar

against Respondent, alleging that it had performed poor work in building their new

house at 2200 N. Curling Smoke Dr., Flagstaff, Arizona 86001. The complaint

enumerated seventeen alleged specific workmanship deficiencies. 3. The Registrar assigned the complaint to its Investigator Steve Philpott for investigation. On August 2, 2018, Investigator Philpott performed a jobsite inspection.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 3.14.2019 ROC LEGAL

4. On August 2, 2018, Investigator Philpott notified Respondent that Complainants had filed 56 addenda items to their complaint. On August 16, 2018, Investigator Philpott performed a second jobsite inspection.

5. On August 17 2018, Investigator Philpott issued a Directive that required

Respondent to correct eight of Complainants’ seventeen items of complaint, as well as

addenda items, in relevant part as follows:

Complaint Item 1: Poor work: garage floor is crowned Complaint Item 2: Poor work: Master bedroom sliding door travel problems Complaint Item 5: Poor work: interior paint (drips, areas left unpainted, bubbles in the paint) Complaint Item 7: Poor work/abandonments: Garage storage has wrong door type installed Complaint Item 8: Poor work: deck stain (areas left unpainted) Complaint Item 9: Poor work: exterior paint (multiple areas left unpainted) Complaint Item 14: Abandonment: missing crawl space ventilation cover Complaint Item 16: Poor work: post-build cleanup hasn't been completed Addendum complaint items: Complaint Item 1: Paint touch up interior (attic entrances, texture in living room, baseboards, damage and marks in all rooms -dried drips, texture, damage, paint marks on living room ceiling, etc. ... ) Complaint Item 2: Clean per contract (after construction work complete) -floors, windows, fireplaces (everywhere there is paint and construction damage) Complaint Item 3: Complete finish work on all baseboards (between baseboards and flooring) Complaint Item 4: Remove paint damage to all light switch plates, door handles, door hinges, floors, fireplaces, etc ... Complaint Item 7: Finish electrical outlets in living room Complaint Item 8: Fix areas where there is paint damage, missing coverage (Chimney area roof fascia needs to be painted; Repaint exterior of side door; Back deck wall paint coverage problems around the windows, ceiling, outside RECEIVED 3.14.2019 ROC LEGAL

master bedroom (threshold, roof, etc.); Paint damage on front deck siding (to the right of the door on the corner); Missing paint from parts of foundation) Complaint Item 9: Correct stain damage/missing stain to front and rear entries, decks, railings, trusses, etc. (sand parts of deck that were not sanded prior to first stain job -splinters) Complaint Item 10: Crawl space east side missing ventilation cover Complaint Item 11: Cover furnace vent on roof Complaint Item 12: Gas line to edge of back deck Complaint Item 13: Trash under back/front decks, around house Complaint Item 14: Damage to back deck window frame Complaint Item 16: Finish electrical outlets on deck Complaint Item 17: Back East railing missing stain Complaint Item 18: Deck stain coverage problems - missing stain areas and stain application problems Complaint Item 21: Paint and stain damage to dog door Complaint Item 22: Range hood vent penetration Complaint Item 25: Refrigerator drinking water trim install Complaint Item 26: Bedroom sliding door doesn't close fully Complaint Item 27: Floor finish damage Complaint Item 28: Master closet window frame damage Complaint Item 29: Fix dangerous nails in fire box Complaint Item 30: Install color-matched bath drain Complaint Item 31: Paint spatter/overspray on left side of vanity Complaint Item 33: Paint issues throughout Complaint Item 36: Cleanup tub drain silicone Complaint Item 38: Paint overspray on left edge of left vanity Complaint Item 40: Washer Drain trim is missing Complaint Item 41: Fill gaps in cabinetry molding, seams, nail holes Complaint Item 46: Fill gaps in cabinetry molding Complaint Item 49: Fix paint damage where not tiled Complaint Item 51: Garage floor crown Investigator’s Observation: This complaint item is substantiated. The floor crown has been corrected prior to the jobsite inspection, however the corrective action fails to meet minimum professional industry standards. Respondent shall correct by appropriate means. RECEIVED 3.14.2019 ROC LEGAL

Complaint Item 53: Install slab door to garage storage Complaint Item 54: Paint top of garage door Complaint Item 56: Fix paint damage to all sides of garage and roof overhang

The deadline for Respondent to comply with the Directive was September 4, 2018, at 5:00 p.m. 6. On September 5, 2018, Investigator Philpott issued a second directive that was identical to the August 17, 2018 directive, except that the deadline for Respondent to comply with the September 5, 2018 directive was September 7, 2018, at 5:00 p.m. 7. On September 12, 2018, Investigator Philpott performed a compliance inspection and determined that Respondent had corrected only four of the items on the directive to comply with the Registrar’s and industry standards, but that at least seven of Complainants’ complaint items were duplicative.1 8. Investigator Philpott referred the complaint to the Registrar’s Legal Department. On September 28, 2018, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 9. Respondent filed a timely written answer to the Citation, stating that it had performed work to repair the items on the directive. 10. The Registrar referred Complainants’ complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A videoconference hearing was held from the Registrar’s Flagstaff office on January 7, 2018, and February 25, 2018. Complainants submitted 21 exhibits and presented the testimony of two witnesses: (1) Patrick Hurley, the officer/qualifying party of Construction Management Associates Inc., License No. ROC 197867, Class B for general residential contracting; and (2) Complainant Laura Faircloth. Respondent submitted six exhibits and presented the testimony of two witnesses: (1) Sean Atkinson, Respondent’ foreman on the project; and (2) Dan Atkinson (“Mr. Atkinson”),

The corrected or duplicative items were addendum items nos. 1, 4, 10, 11, 12, 21, 25, 31, 40, 41, and 51. RECEIVED 3.14.2019 ROC LEGAL

Respondent’s officer/qualifying party and Sean Atkinson’s father. Investigator Philpott also testified.

HEARING EVIDENCE

11. Investigator Philpott testified consistently with his jobsite inspection notes,

the directive and amended directive, and his compliance inspection notes.

12. Investigator Philpott testified that he extended the deadline for Respondent

to comply in the amended directive because, as the original deadline approached,

Complainants stated that they did not want Respondent to work on their house because

they would have guests over the Labor Day Weekend. Investigator Philpott testified

that Complainants only restricted access for Respondent to perform repairs for a day or

so. Altogether, Respondent had more than fifteen days to complete repairs.

13. Investigator Philpott testified that 38 items of complaint remained

unresolved three weeks after the original directive was issued.

14. Investigator Philpott testified that the garage floor was crowned. Although Respondent had attempted repairs, the floor still did not meet the Registrar’s workmanship standards because it prevented the garage door from closing correctly. Investigator Philpott explained that Respondent had cut out a small section of the slab and that one edge was still elevated. 15. Investigator Philpott testified that there were missing paint coverage, drips, poor paint coverage, and poor caulking throughout the residence, as well as overspray on hardware. Many areas needed touchup. 16. Mr. Atkinson testified that Complainants had picked a water-based stain for the decks and an Ultra-pure white Behr eggshell sheen base color for the interior walls, which is usually mixed with other pigments to make colors. Mr. Atkinson testified that Respondent usually used an oil-based exterior stain and that the water-based interior paint showed every flaw. Sean Atkinson testified that the water-based stain was not appropriate for the redwood on Complainants’ exterior decks. 17. Investigator Philpott pointed out that Respondent had accepted Complainants’ paint and stain choices by applying the paint and stain. RECEIVED 3.14.2019 ROC LEGAL

18. Investigator Philpott testified that the range hood was not plumbed correctly. He did not know whether Respondent had used the correct pipe or had penetrated a weight-bearing framing stud.

19. Investigator Philpott testified that Respondent had failed to install electrical

outlets that were called out on the plans.

20. Investigator Philpott testified that the slab door in the garage did not match

the doors in the rest of the house. Although Respondent had agreed to change out the

door at the first jobsite inspection, the door was still in place at the compliance

inspection.

21. Investigator Philpott testified that the fixtures in the tub did not match. The

fixtures in the overflow tub were chrome and the rest of the fixtures were brass. The

fixtures had not been replaced as of the compliance jobsite inspection.

22. Mr. Hurley and Ms. Faircloth testified consistently with the remaining jobsite

deficiencies that Investigator Philpott identified at his compliance inspection and in his

hearing testimony. Ms. Faircloth presented numerous photographs of the various

construction deficiencies.

23. Sean Atkinson testified that between August 27, 2018, and September 7, 2018, his crew worked on completing the repairs that were required by the directive. When he first started, things were going well, but his relationship with Complainants quickly went south. Sean Atkinson testified that three or four times, Complainants refused to allow Respondent’s workmen inside the house. Sean Atkinson did not remember exactly when those refusals had occurred. Sean Atkinson testified if Respondent had had Complainants’ full cooperation, it is possible that it could have completed repairs. 24. Sean Atkinson testified that Complainants had refused to allow Respondent to work on weekends or to start working before 9:00 a.m. 25. Ms. Faircloth testified that Complainants would have allowed Respondent to work weekends if it had requested to do so. Over the Labor Day weekend in 2018, Complainants had guests coming in from out of town and did not want Respondent to work over the weekend. Ms. Faircloth testified that during the time after the directive RECEIVED 3.14.2019 ROC LEGAL

was initially issued, Respondent did not show up for many days, prompting her to send texts to inquire when it planned to perform repairs.2 26. Sean Atkinson testified that on September 7, 2018, which was a Friday, he

brought the painter to the jobsite. Sean Atkinson had to go to the lumber yard to pick

up supplies and then went to lunch. Sean Atkinson testified that when he returned, Ms.

Faircloth told him and Respondent’s crew to leave because they were causing more

problems than they were solving.

27. Ms. Faircloth denied that she asked Respondent’s crew to leave the jobsite

on September 7, 2019, She testified that, after they took a lunch break, she saw them

driving away at approximately 3:00 p.m.

28. Sean Atkinson testified that Ms. Faircloth had directed that Respondent not

perform any painting because she wanted a professional. Sean Atkinson testified that

he was not a licensed painter by trade, but that Respondent employed a painter who

had specialized in the task for many years and that it was up to the general contractor

whether to use a licensed painting subcontractor.

29. Ms. Faircloth acknowledged that she was dissatisfied with the work that

Respondent’s first two painters had performed and the painting repairs that Sean Atkinson attempted. Ms. Faircloth testified that Sean Atkinson had damaged a valuable Oriental rug that she had inherited from her parents by not covering it. Ms. Faircloth testified that she had required Respondent to produce a qualified painter, but that she was still waiting. 30. Sean Atkinson testified that the sliding door in the master bedroom was sticky due to a manufacturing defect. Respondent had agreed to trim the plastic from the door because it was not free-sliding. 31. Sean Atkinson testified that he spent two weeks refinishing the decks on his hand and knees. Sean Atkinson testified that he personally cleaned up the jobsite and that it was clean on September 7, 2018, with the possible exception of the areas under the decks. He testified that he personally applied missing stain to the deck rails, item no. 17 on the complaint, as well as many other items on the directive. See Complainants’ Exhibit 10. RECEIVED 3.14.2019 ROC LEGAL

32. Sean Atkinson acknowledged that there were some items that Respondent was not prepared to correct on September 7, 2018. Item No. 14, the damaged back window frame, could not be repaired and the frame would have to be changed out.

Sean Atkinson testified that an electrician would have to finish Item No. 16, the

electrical outlets on the deck. Sean Atkinson acknowledged that he did not get to Item

No. 27, the damage to the floor finish, because he was trying to get to more important

things.

33. Mr. Atkinson testified that in early June 2018, Complainants notified him

that they needed a final Certificate of Occupancy so that they could move into the

house. Respondent sent a full crew who worked for two weeks so that the City of

Flagstaff’s final inspection could be arranged. The City inspector signed off on the final

inspection and a Certificate of Occupancy was issued on June 7, 2018. Complainants

moved into the house on June 8, 2018. Twelve days later, they filed the complaint with

the Registrar.

34. Mr. Atkinson acknowledged that the original estimated completion date for

the house was January 2018, and that Respondent did not obtain a Certificate of

Occupancy until six months later. 35. Mr. Atkinson also acknowledged that a City inspector looks for code compliance, not workmanship deficiencies, and that the Registrar’s investigator looks for workmanship deficiencies. 36. Mr. Atkinson explained that work was more difficult after Complainants moved in, especially since they had two large dogs. 37. Mr. Atkinson testified that Complainants selected the brass fixtures for the master bath tub. The tub came with chrome fixtures. Although it would only take a plumber fifteen minutes to change out the fixtures, the plumber initially did not have the right fixtures and then there was a time that Respondent’s subcontractors were not allowed to work inside the house. 38. Mr. Atkinson testified that after the directive was issued, Respondent sent a crew out to remove the bad area of floor in the garage and to re-pour that part of the garage slab. Mr. Atkinson testified that the floor in the garage was perfectly flat. Mr. RECEIVED 3.14.2019 ROC LEGAL

Atkinson testified that Investigator Philpott thought that Respondent should remove the floor back to the freeze or control joint. Mr. Atkinson stated that Respondent was willing to perform this more extensive repair, but that it had repaired the problem area.

39. Mr. Atkinson testified that Complainants denied access to Respondent’s

painter several times. Mr. Atkinson testified that on August 31, 2018, he had sent a text

to Ms. Faircloth that a painter would arrive on the next day to perform repairs, but that

Ms. Faircloth responded that she did not want Sean Atkinson to do any more work, so

not to bother. On September 4, 2018, he informed Ms. Faircloth that Sean was coming

out with a painter, but she stated that she did not want any work on that day because

she was expecting company.

40. Mr. Atkinson Mr. Atkinson testified that on September 5, 2018, he contacted

Investigator Philpott because Complainants were not allowing Respondent to complete

repairs. Although Investigator Philpott gave Respondent three more days, Respondent

still did not have time to complete repairs.

41. Mr. Atkinson testified that he thought the house looked good. It had passed

the City of Flagstaff’s inspection. There were no problems with the electrical, plumbing,

or HVAC systems. Mr. Atkinson testified that he was willing to correct any remaining issues of Complainants gave Respondent access. 42. Mr. Atkinson acknowledged that Ms. Faircloth sent him texts on August 6, 2018, August 20, 2018, and August 30, 2018, asking why none of Respondent’s workers had shown up and asking when she could expect Respondent to perform repairs. Mr. Atkinson acknowledged that Respondent did not have any texts or logs shown that it demanded and was denied access, with the exception of the Labor Day weekend. 43. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website on this date. Respondent’s license is suspended and had been disciplined in five other cases. //// RECEIVED 3.14.2019 ROC LEGAL

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.3

2. Complainants bear the burden of proof to establish cause to suspend or

revoke Respondent’s contractor’s license by a preponderance of the evidence.4

Respondent bears the burden to establish factors in mitigation of the penalty and

affirmative defenses by the same evidentiary standard.5

3. “A preponderance of the evidence is such proof as convinces the trier of fact

that the contention is more probably true than not.”6 A preponderance of the evidence

is “[t]he 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.”7

4. The Registrar requires that if a contractor performs contracting work, it must perform the work to comply with the Registrar’s workmanship standards, as required by A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(3). If a homeowner selects a product that is not suited for the application, a contractor should decline to use the product and suggest another more appropriate product. Respondent did not establish that Complainants’ choice of paint products excuses it from complying with the Registrar’s workmanship standards in the interior of the house or on the deck. 5. Construction is not a perfect art and, generally, homeowners are required to allow contractors access to attempt to correct workmanship deficiencies before the Registrar will suspend or revoke the contractors’ licenses. A homeowner’s failure to provide reasonable access for a contractor to comply with a directive issued by the Registrar is an affirmative defense that the contractor bears the burden to establish.

See A.R.S. § 32-1154(A). See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 7 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 3.14.2019 ROC LEGAL

6. Respondent did not establish that Complainants denied it reasonable access to perform most of the repairs on the directive. Respondent did not work diligently on the repairs and, when Complainants had guests coming over the Labor Day holiday,

the deadline on the directive was extended three days.

7. With respect to the interior and exterior painting, Respondent established

that Complainants failed to provide reasonable access because Ms. Faircloth insisted

that Respondent bring a painter who met her approval, rather than allowing

Respondent to attempt repairs as it saw fit. Painting is not a protected trade and was

within the scope of Respondent’s KB-1 dual building contracting license. Although

Respondent may not have been able to correct the interior and exterior painting to

comply with the Registrar’s workmanship standards, Complainants were required to

allow Respondent to at least make an attempt to correct the interior and exterior

painting up until the modified deadline on the directive.

8. Complainants established cause to suspend or revoke Respondent’s

contractor’s license under A.R.S. § 32-1154(A)(3),8 namely A.A.C. R4-9-108,9 and

A.R.S. § 32-1154(A)(22)10 in its construction of and failure to repair Original Complaint

Item Nos. 1, 2, 7, 14, and 16, and Addendum Complaint Items Nos. 2, 3, 7, 13, 14, 16, 26, 27, 28, 29, 30, 36, 46, and 53. RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, as a result of Complainants Brian Michael Abney and Laura A. Faircloth’s complaint in Case No. 2018-2966, Respondent F H B Flagstaff Home Builder, Inc.’s License No. ROC 214887 shall be revoked.

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.” 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.” RECEIVED 3.14.2019 ROC LEGAL

It is further recommended that Respondent shall pay the sum of $500.00 to the Registrar 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

Order, the Registrar shall 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

five days from the date of that certification.

Done this day, March 14, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors