ALJDEC decisions subject to certification as final

2020A-01197-CHC-ROC · Registrar of Contractors · 2020-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Alan Turner,

COMPLAINANT

Pulte Development Corporation,

License No. ROC 114027,

RESPONDENT

No. 2020A-01197-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 5, 2020

APPEARANCES: Complainant Michael Alan Turner appeared on his own behalf. Todd Baxter, Esq. represented Respondent Pulte Development Corporation. Arizona Registrar of Contractors Investigator Stephen Lawton was present. Witnesses Elias Flores and William Ross were also present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Pulte Development Corporation (“Respondent”) is the holder of License No. 114027 issued by the Arizona Registrar of Contractors (“Registrar”).

Respondent is the contractor that constructed Michael Alan Turner’s (“Complainant”) home located at 26017 West Piute Avenue, in Buckeye, Arizona.

On or about March 16, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to certain portions of the construction of Complainant’s home.

The Registrar assigned the Complaint to Investigator Stephen Lawton. After a jobsite inspection, Investigator Lawton issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. §32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 15, 2020.

. . . .

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

Complaint Item 1: Ceramic tile floor in kitchen and dining area had to be replaced due to hump in floor. After installation, the tile did not match the rest of the house. New tile has a matte finish, whereas the original tile has glossy finish. Entryway tile also has to be replaced due to wall being out of plumb. I requested that the guest bathroom tile also be replaced since that room is close to the entryway and I would like all tile to match. I was agreeable to leaving the master bathroom time as is since that room is on the opposite side of the house. If the guest bathroom tie is not replaced, then we would request that the entire tile in the house be replaced so that it all matches.

Investigator’s Observation: It was observed that tile was missing I entryway and has not been replaced at the time of inspection. Needs to install tile and match as closely as possible to original tile.

Complaint Item 3: The glass shower door in master bathroom is not plumb.

Investigator’s Observation: I was observed that the glass shower door was out of plumb.

The following complaint items require no action by the Respondent:

Complaint Item 2: A large section of the driveway leading to the front door is blackened probably due to over-troweling of set up concrete. Pulte is not agreeable to correcting.

Investigator’s Observation: It was observed that there was a dark hue to the concrete driveway. Color and shade variations may occur and are generally acceptable. These differences can be attributed to a wide variety of causes. Some causes include variable jobsite conditions and changes in aggregate source, age, degree of curing, and specified slab substrate.

Complaint Item 4: Guest bathroom exhaust vent should be installed over shower. It is presently over toilet.

Investigator’s Observation: It was observed that the exhaust vent was over toilet and is within code.

Following the issuance of the Written Directive, and after the deadline in the Written Directive expired, Investigator Lawton was notified by Complainant that he was not satisfied with the corrective work that was performed by Respondent.

On July 28, 2020, a compliance inspection was conducted. Investigator Lawton determined that Complaint item number one should be dismissed due to the fact that Complainant completed that item on his own. However, Investigator Lawton further determined that Complaint item number three remained at issue as the shower door was still not plumb. Investigator Lawton referred the matter to the Registrar’s Legal Department.

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 Lawton testified that he conducted a pre-hearing inspection on November 4, 2020, to address the one remaining item of Complaint, namely the shower doors. Investigator Lawton testified that after review, he determined that Respondent’s work in regard to the shower doors is in compliance with industry standards and the American National Standards Institute (“ANSI”). Investigator Lawton testified that the shower doors function as they are intended to function, and consequently, this item of Complaint is no longer a workmanship issue.

Complainant testified that he “wants straight shower doors” and that they are “not plumb with each other.” Complainant did not present any other testimony or evidence.

Elias Flores, Respondent’s Customer Care Manager, testified regarding his twelve years of extensive experience in installing shower door systems. Mr. Flores testified that he is familiar with industry and ANSI standards, as well as the applicable instructions for installing the shower doors at issue. Mr. Flores credibly testified that the shower doors are plumb to their respective jambs. Mr. Flores referenced the installation instructions in Respondent’s Exhibit I and testified that the installation is in compliance with those instructions. Mr. Flores explained that if the shower doors were to be reversed, such installation would be contrary to manufacturer specifications and would encourage water leakage.

William Ross, Respondent’s Construction Manager, testified that he attended all inspections pertaining to this matter, and that as of November 4, 2020, the shower doors operate as intended and are plumb. Mr. Ross testified that the shower doors function to keep water from exiting the shower and their installation and function are in compliance with applicable industry standards

Administrative notice is taken of Respondent’s prior License record on November 16, 2020. Such prior License record reflects that Respondent’s License No. 114027 was first issued on May 6, 1996, and is active. Such prior License record also reflects that there is the instant open complaint, zero resolved/settled/withdrawn complaints, and zero disciplinary actions against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent’s work is currently in conformity with the Registrar’s standards. Therefore, Complainant failed to establish 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.

The evidence established that Respondent completed the required corrective work following the Written Directive being issued. Therefore, Complainant failed to establish 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).

RECOMMENDED ORDER

Based on the foregoing,

IT IS ORDERED that Case number 2020-01197 is dismissed.

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.

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-137160-45720000Done this day, November 23, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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