ALJDEC decisions subject to certification as final

2021A-00259-CHC-ROC · Registrar of Contractors · 2021-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rosalia Moreno,

COMPLAINANT

MT Southwest Construction LLC,

License No. ROC 321547,

RESPONDENT

No. 2021A-00259-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 23, 2021, 9:00 A.M.

APPEARANCES: Complainant Rosalia Moreno appeared on her own behalf; Jose Tapia, Manager, appeared on behalf of Respondent MT Southwest Construction LLC

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. MT Southwest Construction. LLC (Respondent), is the holder of License Number 321547 issued by the Registrar of Contractors (Registrar).

2. On or about January 20, 2021, Rosalia Moreno (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with new construction of a residence in Laveen, Arizona (“project”).

3. The Registrar performed an inspection of the project on February 17, 2021. Thereafter, the Registrar issued a Directive, dated February 22, 2021, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 24, 2021, as follows:

Complaint Item #1: The flooring is badly installed in all house; it is not level.

Investigators Observation: Observed locations of plank tile flooring that is installed over humps and dips in the subfloor (concrete). Observed a hump and/or dips in the floor in the breakfast nook, family room, front living room/entry and master bathroom. Per ROC workmanship standards “Floors should not vary from flat more than 1⁄4 inch over a 10-foot area provided the deviation is gradual.

Deviations, dips or sags over short distances and easily visible to the eye may be

considered unacceptable.” Several locations checked with a 4-foot and 6-foot level showed locations that fell off 1⁄4 in two (2) to three (3) feet. Also observed locations of lippage (tile to tile) greater than 1/32 inch. The locations observe are related to the humps in the subfloor.

*Correct humps and dips in sub-floor in the noted locations above and reinstall floor tile.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #2: In one room flooring is incorrectly spaced.

Investigators Observation: Observed locations of irregular tile spacing in

bedroom #3. Observed width of grout lines that varied from 1/16 to 1⁄4 inch in this

bedroom. The rest of the home appeared to have grout widths of 1/8 to 3/16 inch.

*Correct locations in this bedroom of irregular grout lines (width) for consistency.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #3: Most doors not close correctly.

Investigators Observation: Observed several doors that do not close properly.

Bedroom #2, 4, office and powder room have issues of doors binding at latch

hardware and/or do not have enough spacing between door and jam for correct

functionality. Observed a storage room door off of the garage that the dead bolt does not function and needs to be corrected. Observed upper throw latch on the fixed side of the rear French Door that does not function and needs to be corrected. *Correct doors as listed that bind and/or have hardware that binds or rubs. Correct dead bolt in storage room and latch at rear double door.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #4: Showers are not well done, poor flooring installation.

Investigators Observation: Observed locations in the master shower that have

uneven tile (lippage) issues tile to tile that are greater than the allowed 1/32 inch.

Observed a couple of locations with missing or irregular grout. Homeowner states the floor does not drain correctly in the master and the hall bathrooms. I ran the water in both showers and came back a few minutes later and no water was standing in the shower floors. No action required on shower floors regarding drainage. Hall bathroom shower has lippage of trim around the soap and shampoo nitch that is greater than 1/32 inch and needs to be corrected.

*Correct lippage (greater than 1/32) in master shower and nitch at hall bath shower and any missing or irregular grout.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #5: Poor work in stucco not professional.

Investigators Observation: Stucco appears to be Synthetic stucco finish coated

over western one coat. Both layers of this kind of stucco system are hand applied. Was shown and observed several locations of top coat finish at the bull nose corners, interior corners, tops of arches and fascia detail that have minor finish inconsistences. Location at right edge of front window has a void next to the pop out that needs to be filled. Correct any other locations of voids that need to be addressed where water could penetrate the top synthetic coat. No action required on locations of minor inconsistences as this is a hand applied finish.

Another issue that was brought up regarding the pop outs is the bottom of the

window sills have a two-step pop out and the homeowners believes that the pop out band up about four feet off the ground around the front and back garage doors should also have the two step pop out detail. I reviewed the approved building plans and the detail regarding the band around the garage, window pop outs and sill details are not included on the plan. With many location showing no detail for pop outs at all. Parties state all this detail work was verbal. There is no written agreement or plan showing the agreed upon details. Unable to verify what should or should not have been included. No action required on pop outs or band. *Correct locations of voids or missing synthetic finish coat.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #6: One fan not working.

Investigators Observation: Fan at ceiling of front porch had power to it as the

light was on but the remote would not work or the fan would not turn. Any issues

regarding the remote or fan may be a manufacturer warranty issue if the fan is

installed (wired) correctly. *Verify fan is wired and functioning correctly.

Governing Rule: 32-1154(A)(3) poor work

Complaint Item #7: Kitchen filter have noise, not correctly installed.

Investigators Observation: The filter referred to here is the water RO filter and

water spout installed at the kitchen sink. System sounds like it is sucking or releasing air and makes a noticeable noise. Contractor states the current water spout and handle do not connect properly with the RO systems water lines. It was stated that a new spout has been ordered that will match the current kitchen fixture color better and should connect better with the RO systems parts and water lines. *Correct noise issue and install new fixture per agreement.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #8: The wall around the house is not finished yet.

Investigators Observation: This is referring to the masonry property perimeter

wall on the north and east side of the property. Masonry wall is installed but lacks

grout and cap and final code enforcement approval. Parties state the paint and any additional iron or gates is the responsibility of the property owner.

*Complete grout and caps and get final code approval.

Governing Rule: 32-1154(A)(3) Poor or Incomplete work

4. On April 1, 2021, the Registrar performed a Compliance Inspection at which time it was determined that the above Complaint Item Numbers 2, 5, 6, 7, and 8 had been corrected. It was observed further that Complaint Item Numbers 1, 3, and 4 were not completely corrected.

5. The Registrar then issued a Citation to Respondent, dated April 6, 2021, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for June 23, 2021, at 9:00 A.M.

7. At the June 23, 2021, hearing, Complainant Rosalia Moreno testified on her own behalf. Respondent presented the testimony of Jose Tapia, Manager of Respondent. Jack Grimm, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit Numbers. 1 - 2.

8. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that at his Compliance Inspection on April 1, 2021, he observed that Complaint Item Numbers 2, 5. 6, 7, and 8 had been corrected, but that Complaint Item Numbers 1, 3, and 4 needed further correction. With regard to Complaint Item No. 1, he testified that that the humps and dips on the floor had been corrected, but that that there was a gap between the tile and the baseboard on the back wall of the family room resulting from the new tile installation. With regard to Complaint Item No. 3, he testified that all doors had been corrected, but that the French doors needed to be adjusted. With regard to Complaint Item No. 4, he stated that all work had been completed with the exception of one tile in the hall bathroom with lippage greater than 1/32nd of an inch.

9. Complainant Rosalia Moreno testified that she agreed with the Investigator that Complaint Item Nos. 2, 6, 7, and 8 had been corrected. She testified however that even though Respondent had remedied the gap raised in Complaint Item No. 1, she believed that the new tile installed as remediation looked different than the originally installed tile because it had a different shine. With regard to Complaint Item No. 3, she testified that the self-closing door to the outside storage would still not close completely, and that a striker plate on the back door had come loose (Complainant’s Exhibit No. 2). With regard to Complaint Item No. 5, she testified that the stucco should have come all the way down to the foundation to avoid the small gap that now exists and that there are color variations in the stucco (Complainant’s Exhibit No.1). She further testified that Respondent had fixed the tile referenced in Compliant Item No. 4. With regard to Compliant Item no. 8, she stated she was unsure whether the city had given final approval for the stucco wall.

10. Jose Tapia testified on behalf of Respondent that he took care of many of the items during the inspection. With regard to Ms. Moreno’s complaint relating to Complaint Item No. 1 that the new tile differed from the previously-installed tile, he testified that it was the same tile number but was not the same lot so it looked the same but the texture was a little rougher. He stated he could not obtain the same lot. With respect to Ms. Moreno’s complaint relating to Complaint Item No. 3 regarding door adjustments, he stated that he had adjusted the French door during the inspection but said the striker plate must have come loose since his adjustment.

11. With regard to the storage door, Mr. Tapia stated he adjusted the self-closing door as much as it could be tightened, but that it will not close itself completely because there is no air flow in the storage room. He further testified that the door was never intended to be self-closing, but that he installed self-closing hinges as an accommodation to Respondent and that he could re-install normal hinges if Respondent desired. With regard to stucco variations relating to Complaint Item No. 5 which the Investigator had deemed corrected, he testified that the stucco had been hand-applied so that it was natural to have variations. Also, he testified that stucco at the footing around the foundation was not part of the agreement.

12. With regard to the perimeter wall and the delay in getting the inspection by the city, Mr. Tapia testified this resulted from Respondent’s husband’s delay in choosing the style for the iron, but that he would provide a copy once obtained.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his 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.....

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. A.R.S. § 32-1154(A)(3). Complainant has not presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). There was no dispute that Respondent corrected Complaint Item Numbers 2, 4, 6, and 7. Complainant still raised concerns about Complaint Item Numbers 1, 3, 5 and 8.

Complaint Item No. 1 (flooring): According to the Inspector, Respondent remedied the humps and dips on the floor but left a gap between the floor and baseboard in one area of one room. Complainant admitted that Respondent corrected that gap. However, Complainant contends some of the new tiling had a different sheen than the older tile. Respondent explained that it was the same tile but that he could not obtain the same lot number. As Respondent was not cited for this apparent difference in sheen, the Tribunal finds insufficient evidence to show that this work was not performed in a professional and workmanlike manner.

Complaint Item No. 3 (doors): Complainant asserted that a strike plate had come loose to a back door since Respondent’s last adjustment and that a storage door would not self-close. Respondent stated that he had adjusted the back door but that the strike plate might need a bigger screw. As to the self-closing storage door, Respondent explained that despite all adjustments, it will not close by itself due to poor air flow and that it could only be changed back to a manual closing door as was originally specified. The Tribunal finds insufficient evidence to show that this work was not performed in a professional and workmanlike manner. It is apparent that the self-closing door is not suitable for its location and that Respondent indicated he would change the hinges for manual-closing if the Complainant so desired. As to the loose screw on the door strike plate, the Tribunal finds that such a de minimis item does not warrant disciplinary action.

Complaint Item No. 5 (stucco): Complainant contended that the stucco should have been installed down to the foundation without a gap but the Investigator indicated Respondent was not cited for this alleged infraction because there was nothing in the contract specifying such. Further, as to inconsistencies in the stucco, the Investigator indicated there was no action required because the stucco had been hand- applied. As Respondent was not cited for these items of concern to Complainant, the Tribunal finds insufficient evidence to show that this work was not performed in a professional and workmanlike manner.

Complaint Item No. 8 (perimeter wall): The Investigator testified that the work had been completed on the wall satisfactorily but that there had not been a final inspection by the city. Respondent indicated that this was due to Complainant delaying in choosing the iron. As Complainant did not rebut this testimony, the Tribunal finds insufficient evidence to show that work in this regard was not performed in a professional and workmanlike manner.

7. A.R.S. § 32-1154(A)(22). As the Tribunal has found no violation of A.R.S. § 32-1154(A)(3), the Tribunal consequently finds no violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action.

8. Accordingly Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint shall be dismissed.

In the event of certification of this 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 the certification.

Done this 12th day of July 2021.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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