ALJDEC decisions subject to certification as final

2020A-04047-CHC-ROC-RES · Registrar of Contractors · 2021-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nicholas Crawford,

COMPLAINANT

Jackson Turner Homes LLC,

License No. ROC 326921,

RESPONDENT

No. 2020A-04047-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 15, 2021, and March 26, 2021

APPEARANCES: Complainant Nicholas Crawford appeared on his own behalf. Respondent Jackson Turner Homes LLC was represented by Barry M. Aylstock.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Jackson Turner Homes LLC (Respondent) is the holder of License No. 326921 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 13, 2019, Nicholas Crawford (Complainant) entered into a contract for the purchase of a new home to be built by Respondent.

On or about August 20, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

On or about September 30, 2020, after a jobsite inspection, Investigator Daniel Edwards issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 October 30, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Master Shower Drain floods and then causes flooding into Master Bath.

Investigator’s Observation: This phenomenon was observed. A level was used and it was observed that the floor of the master shower appears to be pitched slightly away from the drain. In addition, Complainant opted to run the shower for approx. 30 seconds with both shower heads pointed directly at the drain, and the water was observed to travel away from the drain and out of the shower into the master bathroom. Respondent should correct this issue by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Lighting/electrical issues, Master bathroom and Hall bathroom lights turn on/off when exhaust fan is turned on/off.

Investigator’s Observation: This phenomenon was observed. Complainant turned on the vanity lights in both the master and hall bathrooms. While the lights were on, Complainant would then turn on the exhaust fans in both bathrooms. Upon turning off the exhaust fans, the vanity lighting would turn off, and then turn back on. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - On the evening of 08/15/2020 went to open the 2 car Garage Door, the wood mount (2x6) for the garage door springs and garage door opener rail ripped out of the wall. That caused the garage door to be damaged. The single car garage door spring mount (2x6) is cracked and appears to be pulling away from the wall.

Investigator’s Observation: The wood mount on the 2 car garage door has separated from the walls of the garage and the 2 car garage door appears to be non-operational currently. The mount on the single car garage door was observed to be splitting as well. The garage doors should work as intended and Respondent shall correct these issues by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Toe Kick in master bathroom was damaged during construction. builder agreed to replace 'asap', as of 8/20/2020 still not replaced

Investigator’s Observation: The toe kick on the right side of the master bathroom vanity was observed the have some of its veneer stripped off. A representative for Respondent acknowledged this issue and that Respondent has been planning to fix it. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent arranged for the trades to access the property to correct the items listed in the directive.

After the deadline in the directive expired, Investigator Edwards was notified some of the corrective work had been performed. Complainant did not agree to grant an extension of the deadline to perform the corrective work.

On or about November 4, 2020, Investigator Edwards performed a compliance jobsite inspection. During the inspection, Investigator Edwards determined that Respondent had not attempted to correct items 2 and 4 from the written directive and had not adequately corrected items 1 and 3.

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(A); and A.R.S. § 32-1154(A)(22).

As to the shower drain issue, the corrective work performed included installing a raised section of the tile to prevent the water from spilling out into the next area of the bathroom/shower. This approach did not correct the drainage issue and running water for a period of time would result in the water level reaching over the raised section.

As to the light/exhaust fan issue, an electrician was able to develop a plan to correct the issue, but was unable to obtain the materials needed to complete the work prior to the deadline expiring.

As to the garage door issue, someone attempted to perform corrective work, but the work did not appropriately correct the issue as demonstrated by the photographs submitted.

As to the cabinet toekick issue, the replacement cabinet could not be obtained prior to the deadline in the written directive expiring.

Investigator Edwards testified that Complainant requested that Respondent not attend the jobsite inspection, saying that “if it could just be me and you, that would be best.”

Complainant testified that Respondent never contacted him after the written directive was issued and before the deadline expired to arrange for the corrective work to be performed. Complainant stated that during that time frame, an electrician, a tile company, and a garage door company had visited the job site during that time frame to perform the corrective work. Complainant denied ever refusing Respondent access to the property to address the issues identified in the written complaint.

Kenneth Henry, an independent contractor for Victor Mann, who works for Respondent, testified that he arranged people to address the issues identified in the written directive. Mr. Henry stated that Complainant never told him no one was allowed on the property to perform the corrective work. Mr. Henry indicated that individuals were on the job to correct the tile, garage door, and electrical issues. Mr. Henry stated that ordering delays prevented obtaining the LED light drivers and cabinet prior to the deadline.

Rebecca White testified as to an incident with Complainant that occurred in the early hours of April 18, 2020, during which Complainant was aggressive.

Administrative notice is taken of Respondent’s prior License record on April 15, 2021. Such prior License record reflects that Respondent’s License No. 326921 was first issued on November 21, 2019, and is active. Such prior License record also reflects that there were no other open or prior complaints 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 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(A).

The evidence established that Respondent did not appropriately 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).

While Respondent asserted that it was denied access to the property to complete the corrective work, that argument was undercut by the fact that workers were on site to correct three of the identified issues prior to the deadline expiring. Respondent did not point to any authority that required Complainant to provide Respondent access to the property during the jobsite or compliance inspection. Further, Complainant’s actions in April 2020, months before the written directive was issued, are insufficient to establish a denial of access.

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. 326921 for a period of three 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.

-54864001

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-137160-45720000Done this day, April 15, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000