ALJDEC decisions subject to certification as final

2018A-2966-ROC · Registrar of Contractors · 2019-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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. 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 56 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 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. 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”), 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. 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 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. 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. 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. / / / / 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. 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. 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 ----------------------- [1] The corrected or duplicative items were addendum items nos. 1, 4, 10, 11, 12, 21, 25, 31, 40, 41, and 51. [2] See Complainants’ Exhibit 10. [3] See A.R.S. § 32-1154(A). [4] 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). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] 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.” [9] 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.” [10] 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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