ALJDEC decisions subject to certification as final
2021A-05543-CHC-ROC · Registrar of Contractors · 2022-04-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jodi Gail Slicker,
COMPLAINANT
v.
Fortune Homes LLC
License No. ROC 327667,
RESPONDENT
No. 2021A-05543-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 11, 2022
APPEARANCES: Complainant Jodi Gail Slicker appeared via Google Meet. Crystal Bauer appeared via Google Meet for Respondent Fortune Homes LLC. Registrar of Contractors Investigator Cliff Corlett appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
______________________________________________________________________
FINDINGS OF FACT
Fortune Homes LLC (Respondent) was the holder of License No. 327667 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 15, 2021, Jodi Gail Slicker (Complainant) signed a contract with Respondent for the purchase of a new home. The contract amount was for $515,000.00.
On or about November 1, 2021, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Cliff Corlett. The jobsite inspection was performed on November 19, 2021.
Investigator Corlett then issued a written directive on or about November 30, 2021 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 in writing of your compliance with this Directive prior to 5:00 p.m. on before December 30, 2021.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
+++++++++++++++++++++++++++++++++++++++++++++++++++++++
Complaint Allegation: 1 - *Kitchen and Bathroom cabinets hung improperly and many scratches that were filled in by a cabinet pen with the wrong color.
Investigator’s Observation: Cabinets in Kitchen and baths hung improperly. Kitchen upper cabinet out of level, drawers bind, overlap and scrape walls. Cabinet surface damage "repaired" with black permanent marker. Lower cabinet veneer panels damaged and improperly replaced or repaired.
RESPONDENT SHOULD PROPERLY REPAIR, RESET, REALINE, AND OR REPLACE AS NECESSARY THE KITCHEN AND BATH CABINETS.
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.
Complaint Allegation: 2 - *Tile in both showers are laid improperly.
Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states that crooked, improperly cut, or unevenly set tile are unacceptable. Both showers have uneven tile/grout spacing, uneven lippage, improperly cut and set tile.
RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
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.
Complaint Allegation: 3 - The flooring tile throughout the entire house is laid improperly, you can hear hollow points in the tile when you walk across the flooring.
Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states that "Hollow Sounding" tile is acceptable if not excessive and the tile is solidly bonded to the floor membrane. Numerous hollow sounding tiles were noted throughout this project.
RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
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.
Complaint Allegation: 4 - There are cracks in the ceiling from drywall separation.
Investigator’s Observation: The WSLC states that the contractor should repair nail pops, seam lines and other hairline drywall cracks one time within the first year of occupancy.
RESPONDENT SHOULD PROPERLY CORRECT/REPAIR NAIL POPS, SEAM AND HAIRLINE DRYWALL CRACKS MATCHING SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
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.
Complaint Allegation: 5 - Interior paint is mismatched.
Investigator’s Observation: Complainant stated she added and painted an accent wall pop out in master bedroom. Complainant states she did no other painting. Numerous areas throughout the house appeared to have been "touched up" with the wrong sheen paint.
RESPONDENT SHOULD PROPERLY RE TOUCH ALL PREVIOUS INCORRECT SHEEN AREAS.
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.
Complaint Allegation: 6 - The hallway wall between the guess rooms is built crooked.
Investigator’s Observation: The base of the short wall between the hall bath door and hall closet door is crooked.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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.
(All errors contained in the original).
On January 29, 2022, Investigator Corlett conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Corlett noted the following:
Compliance Findings: RESPONDENT IS NOT IN COMPLIANCE.
Compliance Jobsite General Notes: On November 30, 2021 the Registrar of Contractors issued a Written Directive to Fortune Homes LLC to properly correct items:
1: Kitchen and bath cabinets improperly hung and many scratches.
2. Tile in both showers improperly laid.
3. Floor tile improperly laid. Hollow sounding tile throughout.
4. Drywall ceiling cracks.
5. Interior paint mismatched.
A COMPLIANCE INSPECTION WAS CONDUCTED ON 1/29/22:
As of 1/29/22 the Respondent had started on the ceiling drywall repairs, however the repairs are incomplete and still needed texture and paint to match surrounding areas.
No other repairs had been started.
(All errors contained in the original).
On February 7, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).
On or about February 17, 2022, Respondent e-mailed an Answer to the Registrar.
On or about March 8, 2022, a Notice of Hearing was issued setting a hearing on April 11, 2021, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Corlett testified as to his involvement and the above timeline.
Investigator Corlett testified that there was no representative from Respondent at the jobsite inspection.
Investigator Corlett testified that the time to complete the directive was reasonable, and although there was some discussion of the tile work being completed in February after the Directive expired, nothing was ever formalized between the parties.
Also, Investigator Corlett testified that the only repair made was to the drywall cracks, however he testified that they were not painted however.
Complainant testified on her own behalf, and called Curtis Siever and Steven Dickerman. Complainant also offered 19 exhibits into evidence.
Complainant testified generally that communicating with Ms. Bauer was very difficult as she lied, and would not respond to her messages. Complainant testified further that because she and her wife were not permanently residing in the property, often neighbors were granted access to the home so Respondent to make necessary repairs.
While Complainant admitted there was some denial of access, this occurred prior to the complaint being filed.
Complainant testified that once the Directive was issued, Ms. Bauer reached out via e-mail on December 7, 2021, with two dates (December 12 and December 20) to commence the repairs. Complainant e-mailed back stating that December 20 would be a good day to have Ms. Bauer’s contractor come to the house.
Complainant then testified that there was an e-mail exchange on December 21, 2021, where it was discussed that the tile repairs to both bathrooms would not be able to occur until February.
Next, Complainant testified that she sent a text on December 30, 2021, inquiring as to a status of the other repairs, and after not hearing from Ms. Bauer, Complainant again reached out to Ms. Bauer via e-mail on January 30, 2022.
Curtis Siever testified that he was a licensed contractor in Nevada, and was hired by Complainant to assess the paint job on the baseboards and to epoxy the garage floor.
Mr. Siever testified that it seemed as if the paint had been watered down as it was difficult to match the paint. Mr. Siever testified further that the baseboards were painted with a roller which created a weird texture.
Next, Steven Dickerman testified. Mr. Dickerman was Complainant’s neighbor and he testified that he would assist Complainant while she was out of town.
Mr. Dickerman testified that he was not able to allow Respondent’s contractors in on December 12 or 18, 2021.
Respondent presented the testimony of Crystal Bauer and Danny McCluskey and offered 27 exhibits into evidence.
Ms. Bauer testified that she was in constant, extensive communication but admitted that it became difficult to be the mediator and scheduler for Complainant and her contractor, Carlos. Ms. Bauer also testified that there were multiple attempts to resolve this matter, but Complainant denied access to the home.
Further, Ms. Bauer testified that she did not believe that the timeframe given to make the repairs was reasonable due to the holidays.
Ms. Bauer also testified that she was not aware that the tile in in the second bathroom was an issue until she received the complaint. Also as to the tile, Ms. Bauer believed that there was an agreement between the parties that the soonest the tile would be repaired was in February 2022.
Ms. Bauer testified that Complainant denied access as Complainant chose the latter (December 20) date and was unable to have availability when an earlier date arose.
As to the lack of communication between December 21 and December 30, Ms. Bauer testified that she was spending time with her children after a record snowfall, and also because she believed that there was an agreement that the tile work would be completed in February.
Ms. Bauer also testified that it was her plan to address the cabinets once the tile issue was resolved.
Next. Danny McCluskey testified. Mr. McClusky was the holder of Respondent’s license.
As to the cabinets, Mr. McClusky testified that there was touch-up needed on the same as some holes needed to be filled, but there were no scratches. Further, he testified that there was one cabinet which was titled and needed to be re-set.
Administrative notice is taken of Respondent’s prior License record on April 25, 2022. Such prior License record reflects that Respondent’s License No. 327667 was first issued on February 11, 2020, and reflects that there is 1 open complaint, namely the present complaint. The license was also suspended as of March 9, 2022, due to non-renewal.
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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Neither witness for Respondent disputed the workmanship issues, with the tile, cabinets, mismatched paint, cracks in the drywall and the crooked hallway wall. 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.
The preponderance evidence also established that Respondent failed to fully complete the corrective action within the time period of the Directive. The Administrative Law Judge finds there was no denial of access. For Ms. Bauer to claim the same is unpersuasive when she only provided Complainant with two dates to choose from. Yes, there were the holidays. Yes, Respondent had other clients. And yes, there were timing issues with the tile repair. However, that does not excuse the other work from being performed. 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).
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. 327667 for a period of five days.
It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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 30 days from the date of that certification.
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-137160-45720000Done this day, April 25, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary