ALJDEC decisions subject to certification as final

2022A-00728-CHC-ROC · Registrar of Contractors · 2022-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Diane A Szumowski,

COMPLAINANT

Haven Homes & Development LLC

License No. ROC 319624,

RESPONDENT

No. 2022A-00728-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 2, 2022, and June 24, 2022

APPEARANCES: Complainant Diane A. Szumowski appeared on her own behalf and was represented by Mark Hanson. Keith Wolick, Qualifying Party, appeared on behalf of Respondent Haven Homes & Development LLC, which was represented by Kyle O’Dwyer.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Haven Homes & Development LLC (Respondent) is the holder of License No. 319624 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 11, 2021, Diane A. Szumowski (Complainant) entered into a contract with Respondent for the construction of a new home.

On or about January 26, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Sheldon White. After a jobsite inspection, Investigator White issued a Written Directive from the Registrar to Respondent that included the following:

DEFINITIONS

The following standards are expressed in terms of permissible tolerances. The format is designed for easy comprehension as follows:

PD Possible deficiency

A brief statement of the problem to be considered.

AT Acceptable tolerance

A statement in measurable terms above which repair may be required and below which the condition is considered to be acceptable. “None” means that the possible deficiency identified is completely unacceptable and no tolerance is allowed.

CR Contractor responsibility

A statement of the corrective action needed to correct the deficiency or damage.

On or about February 28, 2022, Investigator Smith issued an Addendum Written Directive from the Registrar 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 March 17, 2022.

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 reasons, 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 - Poor workmanship on tile and in showers and bath in both owners and guest bathrooms (two bathrooms)

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that, this complaint item is verified. Respondent shall correct by appropriate means.

CERAMIC AND NATURAL STONE WALL TILE

1. PD Ceramic tile cracks or becomes loose.

AT None.

CR Contractor should make necessary repairs.

2. PD Missing or irregular grout.

AT None.

CR Contractor should make necessary repairs.

3. PD Cracks of 1/16” or more at joints or with other dissimilar materials such as bath tubs.

AT None.

CR Contractor should correct one time within first year.

4. PD Crooked, improperly cut or unevenly set tile.

AT None.

CR Contractor should make necessary repairs.

7. PD Improper or omitted trim parts.

AT None.

CR Contractor should make necessary repairs.

8. PD Uneven tiles.

AT Inherent characteristics of the tile dictate the method of installation of the tile. All unusual characteristics of the tile regarding joint width and lippage should be explained to the owner or the owner’s agent prior to installation.

CR Contractor should make necessary repairs.

10. PD Grout discoloration.

AT Some discoloration is inherent in all Portland cement based products. Discoloration may occur due to job-site conditions, individual characteristics of ceramic tile, variances in the rate of hydration, etc. Excessive discoloration is unacceptable. Contractor is not responsible for discoloration after the first year nor for discoloration caused by the use of waxes, sealers, cleaning solutions, etc., not applied or recommended by the contractor or manufacturer.

CR Contractor should make necessary repairs within the first year.

. . . .

Compliance Item: 2 - Damaged tub in guest bathroom

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that, this complaint item is verified.

PLUMBING

3. PD Defective plumbing fixtures or trim fittings.

AT None.

CR Contractor should replace or repair defective fixture or fitting according to manufacturer's warranty unless workmanship is involved, then contractor

should repair problem. Contractor is not responsible for failure due to owner negligence or water impurities.

. . . .

Compliance Item: 3 - Improper tile installation in owner's tub prevents faucet installation

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that, this complaint item is verified. Respondent shall correct by appropriate means.

CERAMIC AND NATURAL STONE WALL TILE

1. PD Ceramic tile cracks or becomes loose.

AT None.

CR Contractor should make necessary repairs.

2. PD Missing or irregular grout.

AT None.

CR Contractor should make necessary repairs.

3. PD Cracks of 1/16” or more at joints or with other dissimilar materials such as bath tubs.

AT None.

CR Contractor should correct one time within first year.

4. PD Crooked, improperly cut or unevenly set tile.

AT None.

CR Contractor should make necessary repairs.

7. PD Improper or omitted trim parts.

AT None.

CR Contractor should make necessary repairs.

8. PD Uneven tiles.

CR Contractor should make necessary repairs.

10. PD Grout discoloration.

CR Contractor should make necessary repairs within the first year.

. . . .

Compliance Item: 5 - Installation gas FIREPLACE resulted in cables and wires exposed to heat when fireplace is turned on

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means. NOTE: wiring Corrected prior to jobsite inspection though sheetrock patch is still need.

. . . .

Compliance Item: 6 - AII windows do not function properly. Do not open easily.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

. . . .

GLASS

2. PD Malfunctioning windows, screens and sliding glass doors.

AT Windows, screens and sliding doors should operate smoothly with reasonable ease. Contractor should not be held responsible for owner’s alterations or abuse to windows, screens and sliding doors.

CR Contractor should replace or repair as necessary one time in first year.

. . . .

Compliance Item: 7 - Wood doors going into bedrooms are "not framed or hung properly" are "warped"

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

CARPENTRY - FINISH - (INTERIOR)

1. PD Poor workmanship on interior trim.

AT All joints on molding, casing, etc., should fit and be securely attached, as well as properly filled and sanded.

CR Contractor should make necessary repairs

3. PD Bypass sliding doors uneven.

AT Bypass door units should be installed square and plumb with proper guides, hang evenly in frame and work smoothly.

CR Contractor should repair and/or adjust properly, one time within the first year.

5. PD Doors bind or rub against jamb.

AT Doors should clear 1/8" at top and sides.

CR Contractor should make necessary repairs one time within first year.

6. PD Door will not stand open.

AT Doors should not move to open or closed when 45o to opening.

CR Contractor should make necessary repairs.

7. PD Interior or exterior door warped.

AT Warping more than 1/4" when measured in any direction is unacceptable.

CR Contractor should replace warped door and finish to match existing doors one time within first year.

. . . .

Compliance Item: 11 - Crack in ceiling in hallway

Investigator’s Observation: Per jobsite agreement the Respondent will correct by appropriate means. The repair to the ceiling in question will not count as the one time repair to sheetrock within the first year. the contractor has agreed to repair when fireplace repair is made and is still willing to repair future cracks one time within the first year.

. . . .

Compliance Item: 20 - Tiler for "fixes" represented by Contractors as master BUT not registered or insured in Arizona.

Investigator’s Observation: Aiding or abetting a licensed or unlicensed person to evade this chapter. Warning letter issued.

. . . .

Compliance Item: 21 - NOTE: at the JSI Respondent agreed to add improper installation of Patio ceiling.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

. . . .

Compliance Item: 22 - the crack area includes the front of the hallway as well - there is a bulge in the ceiling there

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. The bulge would be more correctly described as the outside edge of drop is approximately 1/2" shorter than the rest of the drop.

1. PD Ceiling sags.

AT Ceiling should not sag more than 3/8" in 8'.

CR Contractor should make necessary repairs.

2. PD Visible conditions such as nail pops, cracks and seam lines due to expansion and contraction of structure.

AT Normal conditions such as hairline cracks where drywall meets a dissimilar material should be considered acceptable and can be readily corrected by homeowner.

CR Contractor should repair nail pops, seam lines and other hairline cracks one time within first year of occupancy.

. . . .

Compliance Item: 23 - "Wood doors going into bedrooms are "not framed or hung properly" are "warped", I would like to include all the doors in the house, and not just the bedroom doors. They all seem to have the same issues upon closer inspection.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

CARPENTRY - FINISH - (INTERIOR)

1. PD Poor workmanship on interior trim.

AT All joints on molding, casing, etc., should fit and be securely attached, as well as properly filled and sanded.

CR Contractor should make necessary repairs

3. PD Bypass sliding doors uneven.

AT Bypass door units should be installed square and plumb with proper guides, hang evenly in frame and work smoothly.

CR Contractor should repair and/or adjust properly, one time within the first year.

5. PD Doors bind or rub against jamb.

AT Doors should clear 1/8" at top and sides.

CR Contractor should make necessary repairs one time within first year.

6. PD Door will not stand open.

AT Doors should not move to open or closed when 45o to opening.

CR Contractor should make necessary repairs.

7. PD Interior or exterior door warped.

AT Warping more than 1/4" when measured in any direction is unacceptable.

CR Contractor should replace warped door and finish to match existing doors one time within first year.

. . . .

Compliance Item: 24 - There are areas where the closet infrastructure is either pulling away from the wall or there are cracks.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

CARPENTRY - FINISH - (INTERIOR)

1. PD Poor workmanship on interior trim.

AT All joints on molding, casing, etc., should fit and be securely attached, as well as properly filled and sanded.

CR Contractor should make necessary repairs.

All errors in original.

On or about March 22, 2022, Investigator White performed a compliance jobsite inspection. At that time, Investigator White noted the following:

Compliance Findings:

. . . .

No items directed to be remedy by appropriate means, were found to be completely remedied, at the Compliance Jobsite Inspection by Respondent.

Note: Compliance item 24; was cosmetically repaired by others. A painter hired by Complainant repainted walls. The painter caulked and painted over the closet rod supports masking the supports pulling away from the wall.

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.R.S. § 32-1154(A)(9)(a) and (b); A.R.S. § 32-1154(A)(13); and A.R.S. § 32-1154(A)(22).

Investigator White acknowledged that not all of the corrective work could be completed prior to the deadline in the Addendum Written Directive and Respondent had requested an extension of the deadline, but he denied the request because Respondent had not completed any of the corrective work that could have been completed prior to the deadline. Investigator White stated that none of the windows were hung straight and true and none of the doors were compliant with the Registrar’s standards. Investigator White confirmed that Respondent consistently maintained that removal of the doors by a different contractor was responsible for the issues with the doors. Investigator White stated that the wood planks on the ceiling of the front entry did not exhibit the same issues as the wood planks on the ceiling of the patio, which was the reason he substantiated that complaint item. Investigator White testified that a licensed contractor was not permitted to subcontract with a handyman, an unlicensed contractor, and that a handyman was not permitted to perform any work on a permitted project. Investigator White stated that Respondent informed him that it did not know it was a violation for it to subcontract with a handyman, an unlicensed contractor.

Complainant testified that all of the windows in the home will have to be replaced because none of them open properly as a result of Respondent’s faulty installation. Complainant admitted that she had hired the unlicensed contractor who attempted to perform the corrective work on the bathroom to complete the flooring separately from her contract with Respondent, but indicated that she did so before seeing his work on the bathroom. Complainant acknowledged that the unlicensed contractor had removed the doors to install the flooring. Complainant stated that she was aware of an issue with a limited number of wood planks on the ceiling of the patio at the time of closing and accepted a landscaping credit; however, Complainant maintained that she did not waive asserting a complaint about any future issues with the wood plank ceiling.

Susan Wolick, Bookkeeper and Record Keeper for Respondent, testified that Respondent believed that the windows were installed correctly. Ms. Wolick stated that Respondent had attempted to correct the tiling in the bathroom multiple times, but Complainant was never satisfied with the results.

Mr. Wolick testified that the unlicensed contractor removed the doors and cut the bottoms as the doors were installed with the intention that the flooring would be stained concrete, but Complainant decided to change to a tile floor. Mr. Wolick asserted that when the doors were removed, the set screw was also removed, which resulted in the frame of the doors being out of square. Mr. Wolick argued that if the doors were in that condition at closing, everyone would have noticed and the issue would have had to be corrected at that time. Mr. Wolick argued that sometime the vinyl in the windows “rolls” and that was not the fault of Respondent. Mr. Wolick argued that Respondent could not perform all the corrective work in the Addendum Written Directive within the deadline because the replacement windows would not be received prior to the deadline. Mr. Wolick maintained that the issues with the wood plank ceiling were the result of Arizona’s weather and Respondent was not responsible for Complainant’s choice to use that material.

Respondent denied knowing it was unable to contract with a unlicensed individual. Respondent asserted that it had notified Complainant that the individual was unlicensed and only contracted with him because no licensed contractors were available to perform the work.

Administrative notice is taken of Respondent’s prior License record on July 14, 2022. Such prior License record reflects that Respondent’s License No. 319624 was first issued on May 7, 2018, and is current. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint 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. Respondent failed to establish that the workmanship issues were the result of another’s work on the project. 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 evidence established that Respondent knowingly contracted with an unlicensed contractor to perform work on the project. Therefore, Complainant established that Respondent attempted to evade the Registrar’s statutes by aiding and abetting an unlicensed person and by acting or conspiring with an unlicensed person in violation of A.R.S. § 32-1154(A)(9)(a) and (b) and A.R.S. § 32-1154(A)(13).

The evidence established that Respondent did not 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).

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. 319624 for a period of five 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, July 14, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

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-137160-45720000By Miranda Alvarez

Legal Secretary