ALJDEC - Licensing

2022A-02479-CHC-ROC · Registrar of Contractors · 2023-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brittany and Erich Damiano,

COMPLAINANTS,

Oasis Construction, Inc.

License No. ROC 321338,

RESPONDENT.

No. 2022A-02479-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 10, 2023

APPEARANCES: Scott Potter, Esq. represented Complainants Brittany and Erich Damiano, who were present. Mark Saric, Esq. represented Respondent Oasis Construction, Inc. Mauricio Teran was also present. Arizona Registrar of Contractors Assistant Chief of Investigations, Wes Ellington, appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Oasis Construction, Inc. (“Respondent”) is the holder of License Number 321338 issued by the Arizona Registrar of Contractors (“Registrar”). Mauricio Teran is Respondent’s Qualifying Party and an officer.

On or about March 19, 2021, Brittany and Erich Damiano (“Complainants”) contracted with Nelson Contracting, LLC (“Nelson”) for the construction their home.

The evidence presented at hearing established that Respondent, through Mr. Taren, during a recorded interview, admitted that Respondent allowed Nelson to utilize Respondent’s license for the construction of Complainants’ home, as well as three other homes, and that Nelson paid Respondent $5,000.00 for the use of its license, and utilized Respondent for some aspects of the construction of the homes. The evidence further established that Complainants purchased the home from Nelson had no contact with Respondent throughout the construction of their home and were not aware of Respondent’s agreement with Nelson until after the filing of their Complaint. Moreover, at hearing, Respondent accepted responsibility for aiding and abetting an unlicensed contractor and for the deficient work that was performed. At hearing, Respondent only contested a violation of failing to comply with a Written Directive.

Complainants’ construction contract included upgrades for a “Farmhouse theme,” for which Complainants paid an additional $10,000.00, consisting of: i) black garage doors; ii) black window frames; iii) matte black fixtures, including door hardware, faucets, and light fixtures; iv) elegant tile around master free standing tub; and v) castle brick backsplash in kitchen.

On or about March 29, 2022, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to Respondent’s scope of work.

The Registrar assigned the Complaint to Investigator Wes Ellington. Investigator Ellington conducted a Jobsite Inspection on May 4, 2022. Thereafter, Investigator Ellington conducted a second Jobsite Inspection on July 8, 2022, due to Complainants filing an addendum to their Complaint concerning the flooring.

On July 8, 2022, Investigator Ellington 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 July 29, 2022.

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

Complaint Item: 1. - Roof/ exterior

The mortar joint on the top of the turret's roof is showing signs of cracking.

Investigator’s Observation: Verified. The home inspection report clearly shows this issue. The Respondent will need to correct this by the appropriate means.

Complaint Item: 2.- Roof/ exterior

The drip flashing that is around the base of the roof's turret needs to be painted to match the rest of the flashing that is on the roof.

Investigator’s Observation: Verified. The home inspection report clearly shows this issue. The Respondent will need to correct this by the appropriate means.

Complaint Item: 3. - Exterior

The home's stucco finish is showing signs of needed repairs. The paint on the stucco is showing signs of aging and fading from the sun. The paint is too thin on the outside of the home. The paint on the home is the same age the home. It was observed that there are a number of places where hair line cracks have appeared in the stucco around windows, doors and on walls. Crumbling/ damaged stucco especially by doors, garages, and outside light fixtures. Exposes the flashing.

Investigator’s Observation: Verified. The Respondent will need to correct all issues by the appropriate means.

Complaint Item: 4. - Exterior

I found gaps between the home's stucco and the exterior wood trim that run along the top of both of the garage's service doors. Along with the garage door on patio

Investigator’s Observation: Verified. The Respondent will need to correct all issues by the appropriate means.

Complaint Item: 5. - Foundation/ exterior

The foundation stem walls along the exterior of the home are showing signs of aging. A number of hairline surface cracks in the stem wall's concrete. The cracking appears to be related to the aging of the concrete. The paint on the stem walls is showing signs of aging. The ground next to the home should be made to slope away from the home. Water pooling next to the home can contribute to possible foundation settling, peeling paint or additional cracking on the stem walls in the future.

Investigator’s Observation: There is no evidence of “aging”. The hairline cracks are within minimum workmanship standards. The paint on the stem wall does not meet minimum industry standards. These issues require no correction. The slope away from the house does not meet minimum industry standards and should be corrected with a minimum 2% slope. The Respondent will need to correct this by the appropriate means.

Complaint Item: 7. - Exterior

Cracks on the covered patio ceiling needs to be repaired where needed. There are gaps along the seams that are between the patio ceiling and the home's stucco wall.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 10. - Plumbing/ Exterior

The home's front hose faucet has a built-in anti siphon valve that was functional when tested. The rest of the home's exterior hose faucets have NOT been upgraded with anti siphon valves.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 11. - Plumbing/ Exterior

A propane tank is installed on the east side of the home The tank has not been secured to the side of the home to prevent it from falling over. The propane tank is not protected from the eliminates. No safety shut off valve.

Investigator’s Observation: On 6/22/2022, I spoke with Jim Allen of the Pinal County building department and found that the house was permitted/inspected for electric appliances only and was not permitted/inspected for propane. The Respondent will obtain the required propane permit, and complete all permit requirements and inspections.

Complaint Item: 13. - Electrical/ Exterior

On the covered patio ceiling is an electrical junction box with a missing cover plate. The ends of the wires are not capped inside of the junction box. These are ELECTRICAL SAFETY ISSUES. The ends of the electrical wiring should be capped and a cover plate should be installed over the junction box.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 14. - Garage- 2 car

The home owner explained that when it rains, water is getting inside of the two car garage. The home owner had the ground in the front yard and along the driveway re graded. The work that was done helped to reduce the amount of water that was getting inside the garage. The driveway does not appear to be sloped properly.

Investigator’s Observation: The Complainant applied water to the concrete driveway and the water drained away from the garage. However, water applied at the edge of the overhead door leaked into the garage area. This may be just a door seal issue, but the Respondent will need to diagnose and correct this by the appropriate means.

Complaint Item: 15. - Garage- 2 car

Light could be seen at the base of the two car garages side service door. Water is able to get inside the two car garage. There is a plastic door sweep installed on the bottom of the door. A gap can be seen running along the top of the plastic trim. Above the the two car garage service door, the paint on the wall had been touched up. The touch up paint used did not match the rest of the paint that is on the wall. The door from the house to the 2 car garage binds up sometimes when opening.

Investigator’s Observation: The Complainant stated that he had adjusted the threshold to better seal the door (garage to backyard door), however, the threshold is not properly sealed at the bottom and around the edges. When water was applied, these areas leaked. The paint mentioned above does not match. The door from the house to the garage needs adjustment. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 16. - Garage- 2 car

On the south wall of the two car garage, I found signs of needed repairs to the garage wall.

Investigator’s Observation: Verified. The area around the door control appears to have been repaired poorly and the large circle in the drywall is obvious. The Respondent will need to correct this by the appropriate means.

Complaint Item: 17. - Garage- 1 car

Inside the single car garage, I found a crack on the garage ceiling that should be repaired. Along with holes in the ceiling from the garage door tracks. The garage tracks are at an angle in the single car garage. As well as a Large step at service door to 1 car garage. foundation not cut for door opening.

Investigator’s Observation: There is no evidence that the foundation is not cut for the door opening. The support brackets for the door tracks are at an angle, most likely due to the location of the truss where the bracket attaches. This does not appear to affect the operation of the door and meets minimum industry standards. The drywall cracks and the holes from the missed attempts to find the truss need to be repaired. The Respondent will need to correct the drywall issues by the appropriate means.

Complaint Item: 18. - Garage- exterior 2 car

The home owner explained that shutters were to be installed on the garage windows and the work was not done. In side the two car garage, I found signs of cracking between the window frames and the window sills.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 19. - Kitchen & Laundry/ interior

The kitchen cabinets and counter tops were inspected. The home owner explained that the builder was contracted to install quartz counter tops in the kitchen. It appears the Coriane counter tops were installed in the kitchen instead. When I inspected the kitchen cabinets, I found a number of cabinet doors that were not lined up with each other. Under the kitchen island's counter top, the exposed wood that can be seen on the bottom of the counter top has not been painted. Gaps could be seen in the wood. Under the kitchen island's counter top, wood trim has not been installed between the cabinet walls and the bottom of the counter top. Unfinished edge on the molding for the cabinets in kitchen.

Investigator’s Observation: No evidence was provided to prove the countertop material is incorrect. No correction for this is required at this time. All other issues were verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 20. -Kitchen/ Interior

Pipe shaking heard down the hall when the kitchen sink shuts off.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 21. - Laundry/ interior

In the laundry room, behind the sink, gaps were found along the base of the counter top's splash block.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 22. - Laundry/ interior

In the laundry room, behind the washer, the plastic trim work is missing around the washer's hose faucet opening the is the wall.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 23. - Interior

A overheard garage door has been installed on the covered patio. When the door was tested, it was not closing properly. The garage door vibrates when it starts to come down as if it is bound up. On the east end of the bottom door panel, the roller and mounting flange is installed at an angle. The metal door tracks were to be painted black. On both sides of the door's roller tracks are a number of rectangular openings in the metal track that have not been covered with cover plates like the neighbor's homes. Drywall is exposed when the garage doors open and when it is closed light can be seen from the lower right side.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 24. - Exterior/ Interior

There is a garage door opening on the back patio. When the door is open, a gap could be seen between the homes laminated wood flooring and the concrete door threshold. Repairs should be made as needed.

Investigator’s Observation: Verified, does not properly seal. The Respondent will need to correct this by the appropriate means.

Complaint Item: 25. - Bathroom/ Interior

Hall bathroom #1 was inspected. There is damage along the edge of the bathtub. On the left side of the bathtub, caulking material is covering the bathtub logo. On the bathroom walls are signs of poor workman ship to the drywall and paint. A gap can be seen along the bottom of the base board that is behind the toilet. The light switch in the bathroom flickers when you turn on the fan.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 26. - Bathroom/ Interior

Hall bathroom #2 was inspected. The gap along the bottom of the counter top's splash block is not sealed. The gap between the tile wall and the bathtub's fill spout needs to be sealed to prevent moisture from getting inside the wall when taking showers. Poor workmanship on the bathroom walls and door frame.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 27. - Bathroom/ interior

The master bathroom was inspected. The bathtub's spray hose connection showed signs of leaking when it was tested. A hot water temperature of 89 degrees was tested coming out of the bathtub's fill spout. A hot water temperature of 115 degrees was tested coming from the rest of the faucets inside the home. There is a gap in the floor covering that is around the bathtub's drain pipe. The shower stall was inspected and tested. The water pressure from the left shower head is lower than the water pressure from the right shower head. The tile ground on the right corner of the shower stall's bench seating showed signs of damage.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 28. - Bathroom/ interior

In the master bathroom. The bathroom's closet door would not latch closed when tested. The bathroom cabinet's pull out drawers hit up against the cabinet when it is opened or closed. The end of the baseboard was not painted when it was replaced to the right of the bathtub. The kick plate that runs along the base of the bathroom cabinets is not present. The caulking material along the counter top's splash block showed signs of needed repairs.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Complaint Item: 29. - Floor/ Interior

The home owner explained that the builder changed the type of laminated floor covering to a lesser grade of floor covering and they did not inform them of the change prior to installing the floor covering inside the home. The flooring covering has multiple dips in it in the front entry, hallway, dinning area, bedrooms and throughout the home. The uneven floors has caused gaps along the bottom of the base boards throughout the home. Gouges, scratches, black specks and stains had been found on the new floor covering throughout the home.

Investigator’s Observation: The Complainant received financial compensation for the change in flooring material. It cannot be determined at this point who is responsible for the gouges, scratches, black specs, and stains. No correction is required by the Respondent for these issues.

On 7/8/2022, a second inspection was conducted on the dips in the flooring. On this inspection, the Complainant showed multiple areas throughout the house where the flooring has dips and humps obviously present using a six-foot level. The current ROC workmanship standards for this issue are:

Uneven or wavy floors:

Floors should not vary from flat more than 1/4" over a 10' area provided the deviation is gradual. Deviations, dips, or sags over short distances and easily visible to the eye may be considered unacceptable.

Contractor should make necessary repairs.

The Respondent will need to determine the areas that are out of tolerance and correct this by the appropriate means.

Complaint Item: 30. - Interior Rooms

The home owner pointed out that the home's wood framing appears to not be installed square in the hallway. The master bedroom's patio door showed signs of needed repairs. The home owner had to adjust the door threshold because of a gap that was found under the west door. When the door is closed, light could still be seen between the two doors next to the floor. And along the threshold. The east half of the door is hard to open and close. Throughout the home are signs of needed repairs to the interior doors and door frames. Nail holes in the wood trim have not been sealed in a lot of places throughout the home. Damage to the master bedroom door and door casing has been damaged. The door's top door hinge looks like it was replaced and the work was not completed. The vertical wood door trim on a number of the doors shows that the wood trim had been spliced together. The horizontal seams were not properly done. At the top of the vertical door trim, where it butts up against the wood trim that runs along the top of the door openings are signs the vertical wood trim was installed on the walls at an angle on a number of the doors. The paint on a number of the doors and door frames showed signs of poor workmanship.

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means, with the exception of door thresholds the Complainant stated he had modified/adjusted himself.

Complaint Item: 31. - Interior Rooms

The walls and ceilings inside the home should have a smooth finish. The walls throughout the home are showing signs of poor workman ship or damage related to the paint and drywall. Some paint was repaired, but still does not match the original paint color. I found a hairline crack on the master bathroom's closet wall on the upper left corner of the closet door's door opening. I found nail pops in a number of places on the walls throughout the home. I found a lot of places on the walls where the drywall mud was not sanded down smooth. Drywall seam tape is exposed in a number of places. The paint on the walls showed signs of running down the walls in a couple of places. Gaps around wall plugs and light switch cover plates can be seen. The home owner explained that when drywall was being installed inside of the home, a number of the windows had been left open when the work was being done. Moisture from a rain storm was able to get inside the home and run down the drywall leaving stains on the drywall. Some of the drywall was soft to the touch. A bubble was found on the wall in the front entry. The home owner has concerns that the moisture coming in through the windows may have caused mold or mildew inside the walls.

Investigator’s Observation: There is no evidence to support the presence of mold/mildew from the water intrusion. All other issues verified. The Respondent will need to correct the issues by the appropriate means.

Complaint Item: 32. - Interior Rooms/ windows

In most of the home's window openings, I found signs of cracking between the drywall and the window frames.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 33. - Interior Rooms

The baseboards throughout the home are showing signs of poor workmanship. Gaps in the corner joints or along the top of the baseboards. Nail holes in the wood not filled or poorly filled and poor workmanship on the paint of the baseboards.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 34. -Interior-

Minor Water damage to the door to the den

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item: 35. -Interior- Bedroom

Crooked air vent in ceiling.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 6. - Exterior- patio

The home owner explained that the home's patio door was be a full glass door instead of a half glass door. Along the bottom of the patio door, there is a gap between the top of the plastic trim work and the door. Moisture can get behind the plastic trim work.

Investigator’s Observation: No evidence was provided to show full glass door was in contract. The Complainant has corrected the threshold issue. No further correction on this issue is required by the Respondent at this time.

Complaint Item: 8. - Grounds/ Exterior

I found signs of erosion along the drip line of the roof. Water pooling next to the side of the home can cause possible settling of the home's foundation or damage to the stem walls.

Investigator’s Observation: The issue of drainage away from the structure is covered in item 5. The Complainant may want to consider gutter installation to prevent erosion. This is a homeowner maintenance item, no correction is required by the Respondent.

Complaint Item: 9. - Grounds/ Exterior

The home owner has graded the backyard so the ground in the backyard slopes away from the home towards the S/W corner of the backyard. The home owner has installed a cinder block all the way around the perimeter of the backyard. Drain openings were installed along the base of the cinder block walls to help drain water in the backyard through the block towards the wash that runs along the west side of the properly. Months after taking possession of the home, the builder moved the wash closer to home's the block wall. The wash is now a flood risk and can wash out the block wall in the future.

Investigator’s Observation: The ROC has no jurisdiction on this issue. The Complainant should pursue this issue further with Pinal County Flood Control.

Complaint Item: 12. - Plumbing/ Exterior

The home has a private septic system. The home owner explained that the builder has not provided a certificate or paper work for the system that shows the system is properly installed and sized for this size of home. The septic tank tipped over during a storm in July or August of 2021. The builder made repairs to the tank and installed it in the ground. The home owner is not sure if the builder is licensed to the make the repairs to the septic tank and if the repairs that were made to the septic tank were done properly.

Investigator’s Observation: There is insufficient evidence to prove the allegation. No correction is required by the Respondent.

Complaint Item: 36. - Interior

Concern for termites. Possible small tube forming over light switch to patio. No documentation of treatment or warranty was given.

Investigator’s Observation: No evidence was provided to support the presence of termites. No correction is required by the Respondent.

All errors in original.

Complainants filed another addendum to the Complaint concerning the windows. Consequently, Investigator Ellington conducted another Jobsite Inspection on December 8, 2022.

On January 4, 2023, Investigator Ellington issued an Amended Written Directive to Respondent that extended the compliance deadline to January 27, 2023, and incorporated the following into the previously issued Written Directive:

Addendum Inspection 12/8/2022:

Complaint Item A37: Per the contract, windows were supposed to be black framed, inside and out. The outside is originally a white frame that was painted black. They are throughout the house.

Investigator’s Observation: The contract states:

“Farmhouse theme, which includes:

• Black Garage Doors

• Black window frames

• Matte black fixtures: door hardware, faucets, light fixtures

• Elegant tile around master free standing tub

• Castle brick backsplash in kitchen”

The exterior window frames have been painted black and shows poor workmanship. Window frames are not normally painted and are ordered in the preferred color. Additionally, the window screens are white which has an aesthetically unpleasing appearance. The interior of the window frames are white. This does not match the “farmhouse theme” listed in the contract. The Respondent will need to correct this by the appropriate means.

All errors in original.

On March 24, 2023, Investigator Ellington conducted a Compliance Inspection. Investigator Ellington’s Compliance Jobsite General Notes state the following:

Compliance Findings:

Complaint Item: 1. - Roof/ exterior

The mortar joint on the top of the turret's roof is showing signs of cracking.

Investigator’s Observation: Verified. The home inspection report clearly shows this issue. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was done on this issue.

NOT CORRECTED

Complaint Item: 2.- Roof/ exterior

The drip flashing that is around the base of the roof's turret needs to be painted to match the rest of the flashing that is on the roof.

Investigator’s Observation: Verified. The home inspection report clearly shows this issue. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was done on this issue.

NOT CORRECTED

Complaint Item: 3. - Exterior

Investigator’s Observation: Verified. The Respondent will need to correct all issues by the appropriate means.

Compliance Findings: Crumbling has been repaired and is acceptable. Some paint was done, but there are still many areas where paint is thin. This is not acceptable and does not meet minimum industry standards.

NOT CORRECTED

Complaint Item: 4. - Exterior

I found gaps between the home's stucco and the exterior wood trim that run along the top of both of the garage's service doors. Along with the garage door on patio

Investigator’s Observation: Verified. The Respondent will need to correct all issues by the appropriate means.

Compliance Findings: The Complainant stated that this issue has been corrected.

CORRECTED

Complaint Item: 5. - Foundation/ exterior

Compliance Findings: Some grading was performed, but there are still areas on the west and north side of the home that do not slope away from the house.

NOT CORRECTED

Complaint Item: 7. - Exterior

Cracks on the covered patio ceiling needs to be repaired where needed. There are gaps along the seams that are between the patio ceiling and the home's stucco wall.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: The Complainant stated that this issue has been corrected.

CORRECTED

Complaint Item: 10. - Plumbing/ Exterior

The home's front hose faucet has a built-in anti siphon valve that was functional when tested. The rest of the home's exterior hose faucets have NOT been upgraded with anti siphon valves.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 11. - Plumbing/ Exterior

Compliance Findings: No corrective work was performed by the Respondent on this issue, and no permit was obtained.

NOT CORRECTED

Complaint Item: 13. - Electrical/ Exterior

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 14. - Garage- 2 car

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 15. - Garage- 2 car

Compliance Findings: The Respondent replaced the threshold, however, the Complainant performed a water test and showed that water still runs under the new threshold into the garage.

NOT CORRECTED

Complaint Item: 16. - Garage- 2 car

On the south wall of the two car garage, I found signs of needed repairs to the garage wall.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 17. - Garage- 1 car

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 18. - Garage- exterior 2 car

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 19. - Kitchen & Laundry/ interior

the kitchen island's counter top, wood trim has not been installed between the cabinet walls and the bottom of the counter top. Unfinished edge on the molding for the cabinets in kitchen.

Compliance Findings: The exposed wood under the counter was corrected. The cabinet doors still are not aligned, and the crown molding issue was not corrected where the north cabinets meet the wall on the left side.

NOT CORRECTED

Complaint Item: 20. -Kitchen/ Interior

Pipe shaking heard down the hall when the kitchen sink shuts off.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 21. - Laundry/ interior

In the laundry room, behind the sink, gaps were found along the base of the counter top's splash block.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 22. - Laundry/ interior

In the laundry room, behind the washer, the plastic trim work is missing around the washer's hose faucet opening the is the wall.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 23. - Interior

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 24. - Exterior/ Interior

Investigator’s Observation: Verified, does not properly seal. The Respondent will need to correct this by the appropriate means.

Compliance Findings: The gaps were corrected by finishing with drywall material. However, the job was not completed by painting the repaired area.

NOT CORRECTED

Complaint Item: 25. - Bathroom/ Interior

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Compliance Findings: the damaged bathtub was repaired and meets minimum standards. All other issues were not corrected.

NOT CORRECTED

Complaint Item: 26. - Bathroom/ Interior

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Compliance Findings: The bathroom walls were corrected. All other issues are still the same with no attempted repairs.

NOT CORRECTED

Complaint Item: 27. - Bathroom/ interior

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Compliance Findings: The Complainant repaired the spray hose leak as the Respondent would not. All other issues were not corrected.

NOT CORRECTED

Complaint Item: 28. - Bathroom/ interior

Investigator’s Observation: All issues verified. The Respondent will need to correct these issues by the appropriate means.

Compliance Findings: The Complainant corrected the latch issue as the Respondent would not. The kick plate was installed, and the end of the baseboard was painted. All other issues still remain the same and were not corrected.

NOT CORRECTED

Complaint Item: 29. - Floor/ Interior

Uneven or wavy floors:

Floors should not vary from flat more than 1/4" over a 10' area provided the deviation is gradual.

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

Contractor should make necessary repairs.

The Respondent will need to determine the areas that are out of tolerance and correct this by the appropriate means.

Compliance Findings: The original issues were corrected, but the baseboards were replaced with a different thickness which does not match the door trim. This is an unacceptable repair.

NOT CORRECTED

Complaint Item: 30. - Interior Rooms

Compliance Findings: The hallway walls were not being square, the master bedroom patio door, and the spliced wood trim was corrected. All other issues remain the same and were not corrected.

NOT CORRECTED

Complaint Item: 31. - Interior Rooms

The paint on the walls showed signs of running down the walls in a couple of places. Gaps around wall plugs and light switch cover plates can be seen. The home owner explained that when drywall was being installed inside of the home, a number of the windows had been left open when the work was being done. Moisture from a rain storm was able to get inside the home and run down the drywall leaving stains on the drywall. Some of the drywall was soft to the touch. A bubble was found on the wall in the front entry. The home owner has concerns that the moisture coming in through the windows may have caused mold or mildew inside the walls.

Compliance Findings: Drywall work was attempted throughout the home, but there are still many areas not repaired correctly. There are also still gaps around some of the switch plate covers. All other listed issues have been corrected.

NOT CORRECTED

Complaint Item: 32. - Interior Rooms/ windows

In most of the home's window openings, I found signs of cracking between the drywall and the window frames.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: The Complainant stated that this issue has been corrected.

CORRECTED

Complaint Item: 33. - Interior Rooms

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: The Complainant stated that this issue has been corrected.

CORRECTED

Complaint Item: 34. -Interior-

Minor Water damage to the door to the den

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Complaint Item: 35. -Interior- Bedroom

Crooked air vent in ceiling.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

Addendum Inspection 12/8/2022:

Complaint Item A37: Per the contract, windows were supposed to be black framed, inside and out. The outside is originally a white frame that was painted black. They are throughout the house.

Investigator’s Observation: The contract states:

“Farmhouse theme, which includes:

• Black Garage Doors

• Black window frames

• Matte black fixtures: door hardware, faucets, light fixtures

• Elegant tile around master free standing tub

• Castle brick backsplash in kitchen”

Compliance Findings: No corrective work was performed by the Respondent on this issue.

NOT CORRECTED

All errors in original.

Thereafter, Investigator Ellington forwarded the matter 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), A.R.S. § 32-1154(A)(9)(a), and A.R.S. § 32-1154(A)(22).

Investigator Wes Ellington’s Testimony

Investigator Ellington testified consistently with his findings contained in his Jobsite Inspection Notes, the Written Directives, and Compliance Jobsite General Notes. Investigator Ellington testified regarding Respondent’s agreement with Nelson, and that in addition to receiving $5,000.00 from Nelson in exchange for the use of its license, Respondent performed framing and subcontracted other work for the construction of the home. Investigator Ellington testified that Mr. Teran admitted during a recorded interview to having entered into this arrangement with Nelson.

Investigator Ellington testified that only four (4) of the thirty-one (31) items required to be corrected by the Written Directives, were corrected. Investigator Ellington also testified that the timeframe for compliance with the initial Written Directive was extended multiple times. Investigator Ellington testified that the extensions were due to the fact that Respondent was attempting to remedy issues for a total of four homes and Complainants were “trying to be fair.” Investigator Ellington opined that Respondent could have completed all corrective work within the extended deadlines, that there was “enough time [provided] to build an entire house” and “more time was given than most.” Investigator Ellington testified that Respondent did not request an extension of the January 27, 2023 deadline of the Amended Written Directive.

Regarding the specific items of Complaint that were contested by Respondent, Investigator Ellington testified that the black frame windows are required by contract, and need to be ordered with black frames and not simply painted black. As to the flooring, Investigator Ellington testified that the actual flooring issue was remedied, however, the baseboards that were installed after the corrective work are incorrect and need to be remedied because they are too “thick” and they protrude from the wall.

Erich Damiano’s Testimony

Mr. Damiano testified that he and his wife utilized a realtor to purchase the home in the summer of 2021, and they were advised that Mr. Nelson was the home builder. Mr. Damiano testified that Complainants’ only interaction was with Mr. Nelson and that they first became aware of Respondent at the first Jobsite Inspection.

Mr. Damiano testified that the black frame windows were part of the contract for which Complainants paid an additional $10,000.00.

Mr. Damiano also testified that Complainants agreed to extend the deadline in the Written Directive multiple times, however, Respondent failed to complete the corrective work. Mr. Damiano testified that Respondent replaced the flooring to Complainants’ satisfaction. Mr. Damiano testified that Complainants agree with Investigator Ellington’s Compliance Notes.

Respondent did not present any testimony at the hearing. Respondent asserted that it has accepted responsibility for the work, and that it performed some corrective work. Respondent acknowledged that its license was used to construct the home and further acknowledged that ”things should have been handled differently.”

Administrative notice is taken of Respondent’s prior License record on July 17, 2023. Such prior License record reflects that Respondent’s License Number 321338 was first issued on July 30, 2018, and is active. Such prior License record also reflects that there are four (4) open complaints including the instant Complaint, zero (0) resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear 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.”

In this case, Investigator Ellington found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Ellington determined the existence of workmanship issues concerning the work that was performed by Respondent and Respondent acknowledged those deficiencies and admitted responsibility for the existence of such. Therefore, Complainants established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence, including Respondent’s admission, established that Respondent was paid $5,000.00 by Mr. Nelson in exchange for Respondent allowing Mr. Nelson to use Respondent’s license to construct Complainants’ home. Therefore, Complainants established that Respondent aided or abetted an unlicensed person in violation of A.R.S. § 32-1154(A)(9)(a).

The evidence, including Respondent’s admission, established that Respondent did not complete the required corrective work following the Written Directive being issued notwithstanding numerous extensions over a prolonged period of time. The Administrative Law Judge concludes, based on the evidence of record, that valid justification did not exist for Respondent’s failure to comply with the Written Directive. Therefore, Complainants 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 Number 321338 for a period of ten (10) 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 (30) 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, July 19, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Scott Potter

Arizona Property Law

[email redacted]

Mark G. Saric

Resolvere Law PLLC

[email redacted]

Wes Ellington

[email redacted]

By: OAH Staff