ALJDEC decisions subject to certification as final
2021A-03831-CHC-ROC · Registrar of Contractors · 2022-04-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
David Granville Olvey,
COMPLAINANT
v.
Mattamy Arizona Construction, LLC
License No. ROC 249191,
RESPONDENT
No. 2021A-03831-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: March 30, 2022
APPEARANCES: Complainant David Granville Olvey appeared on his own behalf. Laura Olvey appeared as a witness for Complainant. Willian Kozub, Esq. represented Respondent Mattamy Arizona Construction, LLC. John Kinnally appeared as a witness for Respondent. Leslie Candes and Todd Hahn observed the proceeding. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Mattamy Arizona Construction, LLC (“Respondent”) is the holder of License No. 249191 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about October 21, 2020, David Granville Olvey (“Complainant”) contracted with Respondent for the construction of a home located at 19776 West Pinchot Drive in Buckeye, Arizona. Complainant closed escrow on the home on May 24, 2021, and moved into the home on May 28, 2021.
On or about August 10, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the construction of the home.
The Registrar initially assigned the Complaint to Investigator Steve Lawton. Investigator Lawton scheduled a jobsite inspection on September 9, 2021, at which time the parties agreed to work together to resolve the Complaint.
On October 27, 2021, Complainant filed a Building Confidence Program Request Form with the Registrar in which Complainant identified 23 items of concern.
On October 29, 2021, the Complaint was re-assigned to Investigator John Smith. The Complaint and Building Confidence Program Request were consolidated into the instant Complaint.
After a November 10, 2021 jobsite inspection, Investigator Smith issued a Written Directive to Respondent dated November 15, 2021, 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 December 6, 2021.
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: “FRONT DOOR FRAME DAMAGED WHERE STRIKER PLATE WAS FORCED INTO PLACE .”
Investigator’s Observations: Verified.
There is damage to the jamb of the entry door, specifically around the strike plate.
Some corrective work has been started, but not completed.
The respondent acknowledged this still needs to be corrected/completed.
Complaint Item 3: “LIVING ROOM CEILING MISSING PAINT”
Investigator’s Observations: Verified.
As pointed out by the complainant, there are some small areas of unpainted drywall around the light fixtures in the kitchen area.
Complaint Item 4: “HIGHLY VISIBLE TAPE LINES ON WALLS AND CEILINGS.”
Investigator’s Observations: Verified.
The complainant pointed out a vertical drywall crack in the upstairs, bedroom 2, and an area in the downstairs powder room with an inconsistent texture variation. The texture variation appears to be an area that was over-sanded, or that did not receive enough texture prior to paint.
Complaint Item 8: “PAINT OVER SPRAY ON BRUSHED BRONZE LIGHT FIXTURES AND HANDLES”
Investigator’s Observations: Verified.
The complainant pointed out areas of paint in the kitchen area and master bathroom light fixtures.
Complaint Item 9: “GROUT MISSING FROM FLOOR TILES”
Investigator’s Observations: Verified.
The complainant pointed out grout cracks in the upstairs bathroom.
The complainant stated the upstairs bathroom is the only remaining area of issues with the floor grout.
Complaint Item 11: “BACK SPLASH MISSING GROUT”
Investigator’s Observations: Verified.
The complainant pointed out a crack in the caulk/grout material used at the transition from the countertop to the tile backsplash, specifically to the right of the cook-top.
Complaint Item 12: “73 SCREW HEADS SHOWING THROUGH DRY WALL”
Investigator’s Observations: Verified.
The quantity is not verified. The complainant stated the majority of these have been corrected. As pointed out by the complainant, there are two visible nail pops / exposed screw heads in the stairway, and one in the kitchen area.
Complaint Item 13: “UPSTAIRS BATH 2 DAMAGED SINK INSTALLED”
Investigator’s Observations: Verified.
The respondent acknowledged one piece vanity top in the upstairs guest bathroom needs to be replaced.
Complaint Item 16: “EVERY ROOM MISS-MATCHED TOUCH UP PAINT”
Investigator’s Observations: Verified.
The complainant pointed out several areas of paint concerns throughout the house, both walls and ceilings.
Not all areas pointed out were visible under normal lighting conditions.
Many areas of the paint touch ups are noticeable under normal lighting conditions, and considered to not meet workmanship standards.
The respondent stated they are intending to correct/complete all paint touch ups as needed, including at least two walls of the living room area to be painted from corner to corner, and complete ceilings in some of the rooms.
If the two parties are not in agreement with the quality and/or quantity of corrective paint work performed by the respondent, this issue will then likely require a re-evaluation by the ROC Investigator.
Complaint Item 22: “DOOR TO GARGE STRIKER PLATE BEAT INTO PLACE AND BENT”
Investigator’s Observations: Verified.
Both parties acknowledged this has been corrected with the exception of the painting.
Complaint Item 25: “EXTERIOR STUCCO LARGE CRACKS EVERYWHERE”
Investigator’s Observations: Verified.
There is one horizontal crack on the east side of the house, approximately 10 feet above grade. The crack extends from the front of the house to the back of the house.
The width of this crack was not measured; however, the visually appears to be wider than the 1/16 acceptable tolerance allowed by Arizona Workmanship Standards. The respondent agreed this particular crack needs to be corrected.
The two parties were discussing the possibility of agreeing to correct this particular crack at a future date, close to one year from close of escrow.
All width of all other cracks pointed out by the complainant were less than the 1/16 inch acceptable tolerance allowed by Arizona Workmanship Standards.
Complaint Item 36: “Paint in downstairs powder room not completed”
Investigator’s Observations: Verified.
There is an unfinished/unpainted drywall patch in the downstairs powder room.
Complaint Item 38: “Downstairs door frames missed paint”
Investigator’s Observations: Verified.
There is at least one location of wall paint on the door casings.
There are also locations of recent filler/caulking that is not yet painted.
Complaint Item 40: “Sliding door not sealing on stationary side”
Investigator’s Observations: Verified.
The respondent acknowledged the right side stationary panel/sash needs to be properly seated into the patio door frame.
Complaint Item 47: “Master bath faucet drips non stop”
Investigator’s Observations: Verified.
Three faucets in the upstairs bathrooms were observed to be dripping when not in use.
Complaint Item 48: “Master bath exhaust fan makes horrible noise”
Investigator’s Observations: Verified.
The exhaust fan over the toilet in the master bathroom has an excessive vibration sound.
Complaint Item 52: “Window slots are leaning over not square”
Investigator’s Observations: Verified.
The windows identified are in the den, and in the dining area.
The respondent acknowledged the grids between the layers insulated glass are not properly aligned and need to be replaced.
Complaint Item 53: “Handle for upper for stairs pulling away from wall”
Investigator’s Observations: Verified.
The stairway for this house is divided by a landing at approximately the halfway point. The handrail for the upper section has two mounting brackets spaced 68 inches apart.
The handrail for the lower section has three mounting brackets spaced 32 and 39 inches apart.
The upper handrail does flex away from the wall when being used for its intended purpose.
The caulking around the ends of the handrail returns is cracked.
The respondent agreed to add one additional bracket to the upper rail section.
Complaint Item 58: “Downstairs blind still not replaced , wrong size”
Investigator’s Observations: Verified.
The respondent acknowledged that one of the blinds on the west windows needs to be replaced.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: “NONE OF THE LISTED COMPLAINTS WERE REPAIRED PRIOR TO CLOSING DATE . HOME BUILDER ON FINAL WALK WHICH WAS DONE WITH TERRY THE SUPERITENDENT SAID ALL ITEMS WOULD BE CORRECTED. OVER 46 ISSUES WERE
SUBMITTED AND NOT FIXED. REPAIRS ARE NOW BEING ATTAMPTED. WHILE WE ARE TRYING TO LIVE IN THE HOME.. TONIGHT I HAD TO HIRE AN OUTSIDE CLEANING COMPANY TO COME IN AND CLEAN UP ALL THE DRY WALL DUST OFF MY CHILDRENS BEDS AND FURITURE AS WELL AS ALL OVER THE MASTER AND OTHER UPSTAIRS ROOMS AS WELL AS CARPETS.”
Investigator’s Observations: This allegation is NOT verified.
The majority of the statements within this allegation are general statements and do not implicate workmanship issues.
The issue of construction dust is not present at the time of the jobsite inspection.
Complaint Item 5: “INTERIOR DOOR FRAME NOT SQUAR AT POWDER ROOM”
Investigator’s Observations: This allegation is NOT verified.
This item was not evaluated during the jobsite inspection.
During a phone conversation with David Olvey on November 15, 20201, Mr. Olvey stated this issue has been corrected.
Complaint Item 6: “12 FOOT SLIDING DOOR DAMAGED AND STILL INSTALLED”
Investigator’s Observations: This allegation is NOT verified.
The complainant explained that the door has been replaced. This specific issue is no longer present. There is a current issue with the installed door that is specifically addressed in Complaint Item 40.
Complaint Item 7: “HOLES MISS-DRILLED IN KITCHEN CEILING FOR LIGHT FIXTURES”
Investigator’s Observations: This allegation is NOT verified.
The complainant stated the issue of holes has been corrected. The only remaining portion of this issue is paint, witch is addressed/described in Complaint Items 3 and 8.
Complaint Item 10: “DAMAGED FLOOR TILES INSTALLED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 14: “UPSTAIRS MASTER BATH SINK DAMAGED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 15: “PAINT OVER SPRAY ON BATH TUB”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 17: “WALLS NOT FLUSH AT SWITCH PLATES AND BOWED IN”
Investigator’s Observations: This allegation is NOT verified.
The complainant pointed out two switch boxes; a triple switch box in the living room, and a double switch box in the kitchen area.
The switches do appear to be slightly recessed, resulting in the cover plates being slightly flexed inward.
The condition observed is not considered excessive.
The cover plates installed, according to manufacturers, are considered to be flexible.
Complaint Item 20: “UPSTAIRS FLOOR FEELS WEAK LIKE YOU WILL FALL THROUGH”
Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A).
There is some noticeable flex in the upper level wood floor structure.
The movement/flex observed during the jobsite inspection is considered normal for a wood framed floor structure and therefore, considered to be within workmanship standards.
Complaint Item 21: “ROOF TILES CRACKED AND BROKE”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 23: “TRIM ON KITCHEN CABINETS DAMAGED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 24: “QUARTZ COUNTER TOP CRACKED ”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 26: “QUARTZ COUNTER ON ISLAND DAMAGED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 27: “ISLAND DRAW DOESNT CLOSE PROPERLY”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 28: “OUTLETS LOOSE IN BACK SPLASH”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 29: “BACK SPLASH TILES UNEVEN”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 30: “OPENING AROUND MICOWAVE NOT SQUARE 1/4" + OUT ”
Investigator’s Observations: The complainant stated he has accepted this in its current condition.
Complaint Item 31: “STOP AND DROP WALLS DAMAGED DURING INSTALL”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 32: “MAN DOOR TO GARAGE DOOR SEAL BOWED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 34: “ISLAND COUNTER TOP NOT SECURELY MOUNTED”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 41: “Outlet at counter falling out”
Investigator’s Observations: The complainant stated this item has been fixed.
Complaint Item 44: “Dining room light shorts out”
Investigator’s Observations: This allegation is NOT verified.
This condition was not able to be duplicated during this inspection.
The dining room light was observed to be operating properly.
Complaint Item 46: “Grout cracked up stairs hall bathroom”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 9.
DUPLICATE ITEMS
The following are duplicate complaint items:
Complaint Item 18: “HOLES IN WALLS”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 12.
Complaint Item 19: “UPSTAIRS ROOMS ALL HAVE MISS-MATCHED PAINT”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
Complaint Item 33: “PANTY WALLS MISS MATCH PAINT”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
Complaint Item 35: “RFONT DOOR AND DOOR FRAME DAMAGED BY CONTRACTORS”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 2.
Complaint Item 37: “Miss-matched paint downstairs wall”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
Complaint Item 39: “Grout cracked by repaired door frame at stairs”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 9.
Complaint Item 42: “Switch panel in living room sucked in , visible”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 18.
Complaint Item 43: “All brushed nickel fixtures still covered in paint”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 8.
Complaint Item 45: “Paint on down stairs faucet powder room”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 8.
Complaint Item 49: “Upstairs hall basin still not replaced , damaged”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 13.
Complaint Item 50: “Nickel size chunks of stucco falling off areas”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 25.
Complaint Item 51: “Cracks everywhere in stucco”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 25.
Complaint Item 54: “Room middle drywall seam visible on wall”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 4.
Complaint Item 55: “Room ceiling paint miss-matched”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
Complaint Item 56: “Room 2 ceiling paint miss-matched”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
Complaint Item 57: “Room 3 wall paint miss-matched”
Investigator’s Observations: This is a repeat/continuation of the issue described and addressed in Complaint Item 16.
All errors in original.
Investigator Smith testified that he received notification that Complainant sent an email to Respondent on November 17, 2021, stating that Respondent could only access the jobsite from 9:00 a.m. to 1:45 p.m. Monday through Friday. Investigator Smith informed the parties that access must be granted from 8:00 a.m. until 5:00 p.m., Monday through Friday. The access issue only impacted one half day, and Respondent did not assert a denial of access.
Investigator Smith further testified that on December 1, 2021, Complainant asked Respondent’s painters to leave the jobsite. Investigator Smith also testified that on December 1, 2021, he issued an Amended Written Directive that extended the due date for all corrective work from December 6, 2021, to December 17, 2021, because Respondent informed him that windows had been ordered and were anticipated to arrive on December 15, 2021.
On December 13, 2021, Respondent emailed Investigator Smith to advise that all work would be completed by December 18, 2021.
On December 20, 2021, Complainant notified Investigator Smith that all work ordered to be completed pursuant to the Written Directive had not been completed.
On January 3, 2022, Complainant contacted Investigator Smith to inform him that the furnaces were not working. Investigator Smith added the furnace complaint as an addendum item to the Complaint.
On January 4, 2022, Investigator Smith conducted a Compliance Inspection. Investigator Smith found that ten of the nineteen verified items of Complaint were corrected, and that nine verified items of Complaint remained to be corrected. Investigator Smith’s Compliance Jobsite Inspection General Notes state the following:
Prior to the date of this inspection, the complainant submitted emails stating that both the upstairs and the downstairs furnaces were no working.
At the beginning of this inspection, the complainant stated that both furnaces are now working.
This Compliance Inspection was to evaluate the current conditions of items requiring corrective action as stated on the Directive. Those items are listed below.
Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.
Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...
As stated on Directive: Complaint Item 2: “FRONT DOOR FRAME DAMAGED WHERE STRIKER PLATE WAS FORCED INTO PLACE .”
Investigator’s Observations from initial inspection: Verified.
There is damage to the jamb of the entry door, specifically around the strike plate.
Some corrective work has been started, but not completed.
The respondent acknowledged this still needs to be corrected/completed.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been fixed with the exception of an unpainted repair on the edge of the door near the backset.
There were finger marks visible on the edge of the door, presumably from normal use, however; there is no indications of an unpainted repair.
As stated on Directive: Complaint Item 3: “LIVING ROOM CEILING MISSING PAINT”
Investigator’s Observations from initial inspection: Verified.
As pointed out by the complainant, there are some small areas of unpainted drywall around the light fixtures in the kitchen area.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this is done.
As stated on Directive: Complaint Item 4: “HIGHLY VISIBLE TAPE LINES ON WALLS AND CEILINGS.”
Investigator’s Observations from initial inspection: Verified.
The complainant pointed out a vertical drywall crack in the upstairs, bedroom 2, and an area in the downstairs powder room with an inconsistent texture variation. The texture variation appears to be an area that was over-sanded, or that did not receive enough texture prior to paint.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been fixed except for the trim identified in Complaint Item #38.
As stated on Directive: Complaint Item 8: “PAINT OVER SPRAY ON BRUSHED BRONZE LIGHT FIXTURES AND HANDLES”
Investigator’s Observations from initial inspection: Verified.
The complainant pointed out areas of paint in the kitchen area and master bathroom light fixtures.
Compliance Inspection Findings for this item: This has NOT been corrected.
There are areas of paint on the kitchen area and master bathroom light fixtures.
As stated on Directive: Complaint Item 9: “GROUT MISSING FROM FLOOR TILES”
Investigator’s Observations from initial inspection: Verified.
The complainant pointed out grout cracks in the upstairs bathroom.
The complainant stated the upstairs bathroom is the only remaining area of issues with the floor grout.
Compliance Inspection Findings for this item: This has NOT been corrected.
There is still grout cracking present in the same location of the upstairs bathroom.
As stated on Directive: Complaint Item 11: “BACK SPLASH MISSING GROUT”
Investigator’s Observations from initial inspection: Verified.
The complainant pointed out a crack in the caulk/grout material used at the transition from the countertop to the tile backsplash, specifically to the right of the cook-top.
Compliance Inspection Findings for this item: This has NOT been corrected.
There is still cracking in the grout material used at the transition from the countertop to the tile backsplash.
As stated on Directive: Complaint Item 12: “73 SCREW HEADS SHOWING THROUGH DRY WALL”
Investigator’s Observations from initial inspection: Verified.
The quantity is not verified. The complainant stated the majority of these have been corrected.
As pointed out by the complainant, there are two visible nail pops / exposed screw heads in the stairway, and one in the kitchen area.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been corrected, and he is done dealing with the screw heads.
As stated on Directive: Complaint Item 13: “UPSTAIRS BATH 2 DAMAGED SINK INSTALLED”
Investigator’s Observations from initial inspection: Verified.
The respondent acknowledged one piece vanity top in the upstairs guest bathroom needs to be replaced.
Compliance Inspection Findings for this item: This has NOT been corrected.
The complainant confirmed the vanity top was replaced as part of the corrective work.
The complainant stated that after the vanity top was replaced, damage was noticed at the corner, front edge, and end.
Mr. Taddeo then stated the damage described by the complainant was noticed after the installation, and that the countertop was then repaired in place after installation.
As a result of this on site repair, the vanity top is not square at the corner, and the front edge and right end are wavy.
As stated on Directive: Complaint Item 16: “EVERY ROOM MISS-MATCHED TOUCH UP PAINT”
Investigator’s Observations from initial inspection: Verified.
The complainant pointed out several areas of paint concerns throughout the house, both walls and ceilings.
Not all areas pointed out were visible under normal lighting conditions.
Many areas of the paint touch ups are noticeable under normal lighting conditions, and considered to not meet workmanship standards.
The respondent stated they are intending to correct/complete all paint touch ups as needed, including at least two walls of the living room area to be painted from corner to corner, and complete ceilings in some of the rooms.
If the two parties are not in agreement with the quality and/or quantity of corrective paint work performed by the respondent, this issue will then likely require a re-evaluation by the ROC Investigator.
Compliance Inspection Findings for this item: This has NOT been corrected.
Much paint work has been performed, however; the current results are not all meeting workmanship standards.
Mr. Kinnally was asked if he was done with the paint, or if he was planning on performing additional work on the paint.
Mr. Kinnally responded by stating he is not going to answer that.
Current paint concerns pointed out by the complainant:
• Color variation along the top edge of the wall where they were cut in along the ceiling.
o Based on a visual observation under normal lighting conditions, all paint near the ceilings is considered to be acceptable and within standards.
• One area of touch up paint in the center of an upstairs bedroom wall.
o Based on a visual observation under normal lighting conditions and viewing straight on, this area of paint is considered to be acceptable and within standards.
• A color change at the cornerbead near the refrigerator.
o There is a noticeable sheen change at this corner bead; however, based on a visual observation under normal lighting conditions, there is no noticeable color difference or change in this location.
o The sheen change is considered a standard practice between the living room area and the kitchen area.
• Two locations of hairline cracks in the drywall near window corners in the upstairs level of the home.
• One area of touch up paint in the den, on the north all near the ceiling.
o This area of paint does not match well and is not considered to be acceptable.
o Upon entering this room, Mr. Taddeo pointed out this location prior to the complainant making any comments about the paint in this room.
• A color change at the cornerbead in the entry area, at the transition to the stairs.
o There is a noticeable color difference from one side of the corner, to the other.
o This color variation is not considered to be acceptable.
As stated on Directive: Complaint Item 22: “DOOR TO GARGE STRIKER PLATE BEAT INTO PLACE AND BENT”
Investigator’s Observations from initial inspection: Verified.
Both parties acknowledged this has been corrected with the exception of the painting.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been fixed.
As stated on Directive: Complaint Item 25: “EXTERIOR STUCCO LARGE CRACKS EVERYWHERE”
Investigator’s Observations from initial inspection: Verified.
There is one horizontal crack on the east side of the house, approximately 10 feet above grade. The crack extends from the front of the house to the back of the house.
The width of this crack was not measured; however, the visually appears to be wider than the 1/16 acceptable tolerance allowed by Arizona Workmanship Standards. The respondent agreed this particular crack needs to be corrected.
The two parties were discussing the possibility of agreeing to correct this particular crack at a future date, close to one year from close of escrow.
The widths of all other cracks pointed out by the complainant were less than the 1/16 inch acceptable tolerance allowed by Arizona Workmanship Standards.
Compliance Inspection Findings for this item: This has NOT been corrected.
The respondent acknowledged this has not been corrected.
At this time, the complainant has not entered into an agreement allowing this to be corrected at a future date.
As stated on Directive: Complaint Item 36: “Paint in downstairs powder room not completed”
Investigator’s Observations from initial inspection: Verified.
There is an unfinished/unpainted drywall patch in the downstairs powder room.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been corrected except for the trim identified in Complaint Item #38.
As stated on Directive: Complaint Item 38: “Downstairs door frames missed paint”
Investigator’s Observations from initial inspection: Verified.
There is at least one location of wall paint on the door casings.
There are also locations of recent filler/caulking that is not yet painted.
Compliance Inspection Findings for this item: This has NOT been corrected.
There is one location of a dull finish on the trim in the main floor powder room. Mr. Taddeo acknowledged this area still needs to be painted.
As stated on Directive: Complaint Item 40: “Sliding door not sealing on stationary side”
Investigator’s Observations from initial inspection: Verified.
The respondent acknowledged the right side stationary panel/sash needs to be properly seated into the patio door frame.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been corrected, but further stated the latch is now difficult to operate.
During this inspection, the door did operate and latch properly.
As stated on Directive: Complaint Item 47: “Master bath faucet drips non stop”
Investigator’s Observations from initial inspection: Verified.
Three faucets in the upstairs bathrooms were observed to be dripping when not in use.
Compliance Inspection Findings for this item: This has NOT been corrected.
The right faucet in the master bathroom still has a drip.
Upon entering the bathroom, water was observed dripping from the right faucet. A very slow drip.
There was a small puddle in the bottom of the sink, and the end of the faucet was still wet.
As stated on Directive: Complaint Item 48: “Master bath exhaust fan makes horrible noise”
Investigator’s Observations from initial inspection: Verified.
The exhaust fan over the toilet in the master bathroom has an excessive vibration sound.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been fixed.
As stated on Directive: Complaint Item 52: “Window slots are leaning over not square”
Investigator’s Observations from initial inspection: Verified.
The windows identified are in the den, and in the dining area.
The respondent acknowledged the grids between the layers insulated glass are not properly aligned and need to be replaced.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been fixed, but further stated the screen of the den window was damaged during the corrective work.
What the complainant pointed out was the concave shape at the vertical sides of the screen frame.
This slight concave shape is normal for window screens of this size.
There is no visible damage to the screen.
As stated on Directive: Complaint Item 53: “Handle for upper for stairs pulling away from wall”
Investigator’s Observations from initial inspection: Verified.
The stairway for this house is divided by a landing at approximately the halfway point.
The handrail for the upper section has two mounting brackets spaced 68 inches apart.
The handrail for the lower section has three mounting brackets spaced 32 and 39 inches apart.
The upper handrail does flex away from the wall when being used for its intended purpose.
The caulking around the ends of the handrail returns is cracked.
The respondent agreed to add one additional bracket to the upper rail section.
Compliance Inspection Findings for this item: This has NOT been corrected.
Additional mounting bracket(s) have been added to the upper handrail; however, there is still caulking cracks where the handrail meets the wall.
As stated on Directive: Complaint Item 58: “Downstairs blind still not replaced , wrong size”
Investigator’s Observations from initial inspection: Verified.
The respondent acknowledged that one of the blinds on the west windows needs to be replaced.
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this is done.
All errors in original.
Investigator Smith thereafter forwarded the Complaint 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(A), and A.R.S. § 32-1154(A)(22).
Investigator Smith testified consistently with the findings contained in his jobsite inspection notes, the Written Directive and the compliance inspection notes. Investigator Smith explained that many items remaining to be corrected are painting touch-ups.
Complainant testified that he closed escrow on the home on May 24, 2021, however, was “not supposed to close until August.” Complainant further testified that Respondent began repairs on June 10, 2021, however, Respondent failed to perform repairs on scheduled days, and would arrive at the home on days that were not scheduled for repairs. Complainant also testified that Respondent sent “wrong staff and wrong paint,” did not initially use plastic to protect the home’s contents from drywall dust, splattered paint on tile, broke countertops from standing on them, and Complainant asserted that he “cannot trust them.”
Laura Olvey, Complainant’s wife, testified regarding the hardship the family endured from the end of May 2021 through the end of the Written Directive period, as there were frequently workers in the home and the family could not unpack their belongings. Ms. Olvey asserted that the entire family had to live in a “construction zone” for eight months. Ms. Olvey testified that each time Respondent assured Complainant that everything would be corrected, the work was not done properly or resulted in corollary damage.
John Kinnally, Respondent’s Senior Warranty Manager, testified that Respondent has constructed approximately three thousand homes in the Valley and has never been disciplined by the Registrar. Mr. Kinnally agreed that corrective work remains to be done at Complainant’s home. Mr. Kinnally contended that “timing issues” with various painters, manpower issues, and difficulty obtaining the correct paint due to supply chain issues, all contributed to the corrective work not being fully and timely performed. Mr. Kinnally also attributed work not being completed to Complainant attempting to “direct work” and dismissing painters due to the use of the incorrect paint color. Mr. Kinnally also testified that some of the work was scheduled around the Christmas holiday, and that because of COVID, there were “restrictions” in place. Mr. Kinnally testified that he “thinks all items should be corrected” and that Respondent offered to pay Complainant to “get it fixed.” However, Mr. Kinnally also testified that he believes a minimal amount of money would suffice to pay for the remaining repairs.
At hearing, Respondent did not contest the alleged violations and asserted that “under the circumstances, it did the best possible with timing.” Respondent did not dispute the items ordered to be remedied or the scope of work included within the Written Directive. Respondent blamed the failure to complete the required corrective work on timing over the holidays, labor issues, and paint supply issues. Respondent argued that its “spotless record” should be considered in mitigation of any discipline imposed. Respondent asserted that it is “highly motivated to perform repairs or resolve the matter,” “wants to make it right,” and “wants resolution.”
Administrative notice is taken of Respondent’s prior License record on April 8, 2022. Such prior License record reflects that Respondent’s License No. 249191 was first issued on September 25, 2008, and is active. Such prior License record also reflects that there are three (3) open complaints, including the instant Complaint, no complaints resulting in discipline, and ten (10) resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The undisputed 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 undisputed evidence established that Respondent did not complete the corrective work following the Written Directive being issued, notwithstanding the granted extension, and Respondent acknowledged that deficiencies continue to exist. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar, without valid justification and within a reasonable period of time, in violation of A.R.S. § 32-1154(A)(22).
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. 249191 for a period of five (5) 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)(7), 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 forty (40) days from the date of that certification.
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-137160-45720000Done this day, April 8, 2022.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By: Miranda Alvarez
Legal Secretary