ALJDEC - Licensing
2022A-04273-CHC-ROC · Registrar of Contractors · 2023-11-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Molly Nickel,
COMPLAINANT
v.
Pulte Development Corporation
License No. ROC 079383,
RESPONDENT
No. 2022A-04273-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 18, 2023 and November 6, 2023.
APPEARANCES: Complainant Molly Nickel was represented by Paul M. Levine, Esq. Respondent Pulte Development Corporation was represented by Todd A. Baxter, Esq. Investigator Steve Klein appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Pulte Development Corporation (Respondent) is the holder of License No. 079383 issued by the Arizona Registrar of Contractors (Registrar).
On or about December 20, 2021, Molly Nickel (Complainant) closed on a new home build through Respondent.
On or about May 25, 2022, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to new home build.
The Registrar assigned the complaint to Investigator Steve Klein. The jobsite inspection was performed on August 30, 2022, however, prior to the inspection, Complainant provided an amended complaint and another jobsite inspection was performed on November 10, 2022.
Investigator Klein then issued an Amended Written Directive on or about November 10, 2022, 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 December 12, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint #1 Mutiple doors were not hung plum so the top of the door rubs when you close it.
Inspector’s Observation: Complainant points out two doors, one upstairs and the front door. Both should be adjusted.
• Contractor should correct onetime within the first year of occupancy.
Complaint #2 Excessively visible seams on carpet upstairs in home, excessive piling, and not secured to tack strips correctly.
Inspector’s Observation: Complainant points out two seams upstairs. The seams should be tightly fitted with no gaps in addition the carpet should fit tighter at the stair edges.
Complaint #3 Exterior paint is peeling around roof facia boards.
Inspector’s Observation: I verified exterior paint touch up in needed over the garage, also paint should not peel.
• Contractor should correct onetime within the first year of occupancy.
Complaint #4 Master bathroom shower has crooked, improperly cut or unevenly set tile, missing grout, and ceramic tile crack.
Inspector’s Observation: Complainant points out one cracked tile, one chipped tile, one tile with lippage and grout voids in the m/shower.
• Respondent shall correct by the appropriate means.
Complaint #6 Voids or open knots on outside of cabinet. - We have two drawers with issues Kitchen drawer is coming apart in the back and bathroom has a knot in bottom of drawer.
Inspector’s Observation: Respondent states the drawer in the m/bath is on order and will have the drawer under the oven corrected.
Complaint #7)Poor workmanship on interior trim. - Based board trim in the master bathroom 4) Exposed nails on trim.
Inspector’s Observation: Verified caulking is needed and nails should be installed properly.
• Respondent shall correct by the appropriate means.
Complaint #8 Malfunctioning windows, screens and sliding glass doors. AT Windows, screens and sliding doors should operate smoothly with reasonable ease.
Inspector’s Observation: Complainant points out the sliding glass door. The door is a little difficult to slide, however it latches and locks well.
Complainant states the neighbors have the same door and it is easier to slide, which I’m unable to verify.
• Respondent should make an effort to adjust the door to slide easier one time during the first year of occupancy.
Complaint #9 Door requires two hands to pull open on the sliding door to the backyard.
Inspector’s Observation: Complainant points out the sliding glass door. The door is a little difficult to slide, however it latches and locks well.
Complainant states the neighbors have the same door and it is easier to slide, which I’m unable to verify.
• Respondent should make an effort to adjust the door to slide easier one time during the first year of occupancy.
Complaint #10 Discolored tile by front door of home.
Inspector’s Observation: Respondent states they’re willing to correct and the tile is on order.
Addendum Item Complaint #12 Warped wood flooring and squeaks on the second level flooring of the home.
Inspector’s Observation: I verified floor squeaks on the second floor and a low area in the hall.
Addendum Item Complaint #13 Fraying of carpet on the stairs;
Inspector’s Observation: I verified fraying of the carpet on the stairs.
• Respondent shall correct by the appropriate means.
Addendum Item Complaint #14 Multiple stairs squeaking;
Inspector’s Observation: I verified squeaks on the stairs
• Respondent shall correct by the appropriate means.
Addendum Item Complaint #15 Multiple visible carpet seams;
Inspector’s Observation: I verified visible seams.
• The seams should be tightly fitted with no gaps
• Respondent shall correct by the appropriate means.
Addendum Item Complaint #16 Non-level, uneven, sagging sub flooring in multiple carpet areas;
Inspector’s Observation: I verified high areas in the carpet at the upstairs hall bath, laundry and a low area in the hall.
Addendum Item Complaint #17 Squeaking under multiple carpet and tile areas;
Inspector’s Observation: I verified floor squeaking in the upstairs hall bath.
• Respondent shall correct by the appropriate means.
Addendum Item Complaint #18 Visible seams in multiple carpet areas.
Inspector’s Observation: I verified visible seams.
• The seams should be tightly fitted with no gaps
• Respondent shall correct by the appropriate means.
Addendum Item Complaint #19 Trip hazard leading into tile area from end of carpet to tile;
Inspector’s Observation: I verified high areas in the carpet leading into the hall bath and laundry.
Addendum Item Complaint #20 Carpet lifting in multiple areas;
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
Addendum Item Complaint # 21 tack strip felt through carpet in multiple areas;
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
Addendum Item Complaint # 22 Excess carpet wear due to subfloor issues in multiple areas
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint #5 Air conditioner does not adequately cool structure. AT Unit should cool structure 30o (32o in Scottsdale) lower than outside air temperature when measured in center of room at 5' height. Minimum indoor temperature should be 78o. - We had an independent contract come out who identified we have a faulty valve and restricted airflow in our ducts.
Inspector’s Observation: Corrected my Respondent prior to the jobsite inspection.
(All errors contained in the original).
On January 23, 2023, Investigator Klein completed a Compliance Jobsite Inspection. Investigator Klein noted the following:
Compliance Findings:
Complaint #1 Multiple doors were not hung plum so the top of the door rubs when you close it.
Inspector’s Observation: Complainant points out two doors, one upstairs and the front door. Both should be adjusted.
• Completed at CJSI
Complaint #2 Excessively visible seams on carpet upstairs in home, excessive piling, and not secured to tack strips correctly.
Inspector’s Observation: Complainant points out two seams upstairs. The seams should be tightly fitted with no gaps in addition the carpet should fit tighter at the stair edges.
• Completed at CJSI
Complaint #3 Exterior paint is peeling around roof facia boards.
Inspector’s Observation: I verified exterior paint touch up in needed over the garage, also paint should not peel.
• Not completed at CJSI, Verified paint touch up is in progress, R states the issues are not related to the directive, However paint is peeling on the roofs metal drip edge still.
Complaint #4 Master bathroom shower has crooked, improperly cut or unevenly set tile, missing grout, and ceramic tile crack.
Inspector’s Observation: Complainant points out one cracked tile, one chipped tile, one tile with lippage and grout voids in the m/shower.
• Completed at CJSI.
Complaint #6 Voids or open knots on outside of cabinet. - We have two drawers with issues Kitchen drawer is coming apart in the back and bathroom has a knot in bottom of drawer.
Inspector’s Observation: Respondent states the drawer in the m/bath is on order and will have the drawer under the oven corrected.
• Completed at CJSI.
Complaint #7) Poor workmanship on interior trim. - Based board trim in the master bathroom 4) Exposed nails on trim.
Inspector’s Observation: Verified caulking is needed and nails should be installed properly.
• Not completed CJSI: The base was removed and replaced upstairs. Complainant pointed out issues caused from removing base to complete the 2nd floor OSB replacement. There are exposed nails in the base that need to be corrected.
Complaint #8 Malfunctioning windows, screens and sliding glass doors. AT Windows, screens and sliding doors should operate smoothly with reasonable ease.
Inspector’s Observation: Complainant points out the sliding glass door. The door is a little difficult to slide, however it latches and locks well.
Complainant states the neighbors have the same door and it is easier to slide, which I’m unable to verify.
• Completed at CJSI
Complaint #9 Door requires two hands to pull open on the sliding door to the backyard.
Inspector’s Observation: Complainant points out the sliding glass door. The door is a little difficult to slide, however it latches and locks well.
Complainant states the neighbors have the same door and it is easier to slide, which I’m unable to verify.
• Completed at CJSI
Complaint #10 discolored tile by front door of home.
Inspector’s Observation: Respondent states they’re willing to correct and the tile is on order.
• Completed at CJSI, Grout from repair doesn’t match perfectly, however, my opinion is the Respondent matched it as close as possible.
Addendum Item Complaint #12 Warped wood flooring and squeaks on the second level flooring of the home.
Inspector’s Observation: I verified floor squeaks on the second floor and a low area in the hall.
• Completed at CJSI, Respondent replaced the OSB upstairs, Complainant walked around upstairs while I was downstairs listening. I heard him walking around, however did not hear excessive squeaks.
Addendum Item Complaint #13 Fraying of carpet on the stairs;
Inspector’s Observation: I verified fraying of the carpet on the stairs.
Completed at CJSI
Addendum Item Complaint #14 Multiple stairs squeaking;
Inspector’s Observation: I verified squeaks on the stairs
• Completed at CJSI, Complainant walked around upstairs while I was listening for squeaks. I did not hear any excessive floor squeaks.
Addendum Item Complaint #15 Multiple visible carpet seams;
Inspector’s Observation: I verified visible seams.
• The seams should be tightly fitted with no gaps
Completed at CJSI
Addendum Item Complaint #16 Non-level, uneven, sagging sub flooring in multiple carpet areas;
Inspector’s Observation: I verified high areas in the carpet at the upstairs hall bath, laundry and a low area in the hall.
Not completed CJSI, Complainant removed the carpet in the 3rd bedroom and pointed out a high area in the OSB replacement.
Addendum Item Complaint #17 Squeaking under multiple carpet and tile areas;
Inspector’s Observation: I verified floor squeaking in the upstairs hall bath.
Not completed at CJSI, Complainant points out grout touch up from the floor tile replacement.
Addendum Item Complaint #18 Visible seams in multiple carpet areas.
Inspector’s Observation: I verified visible seams.
• The seams should be tightly fitted with no gaps
Completed at CJSI
Addendum Item Complaint #19 Trip hazard leading into tile area from end of carpet to tile;
Inspector’s Observation: I verified high areas in the carpet leading into the hall bath and laundry.
Completed at CJSI
Addendum Item Complaint #20 Carpet lifting in multiple areas;
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
Completed at CJSI
Addendum Item Complaint # 21 Tack strip felt through carpet in multiple areas;
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
Completed at CJSI
Addendum Item Complaint # 22 Excess carpet wear due to subfloor issues in multiple areas
Inspector’s Observation: The Respondent agreed to replace the upstairs carpet which should resolve the carpet issues in the complaint.
Completed at CJSI
Not on the original complaint:
Complainant points out nail pops on the down stairs ceiling, they are not sure if it was caused from the floor replacement or not. This Item was not on the directive to correct. N/A
Note:
Please review the complaint items listed above. If any of the items have not been corrected at the time of the compliance inspection this complaint will be forwarded to the Registrar’s legal department and a citation may be issued. Items #3 #7 #16 #17.
(All errors contained in original).
On January 26, 2023, 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).
On or about February 9, 2023, Respondent timely filed its Answer with the Registrar of Contractors.
On April 5, 2023, a Notice of Hearing was issued setting a hearing on May 11, 2023, at the Office of Administrative Hearings, an independent state agency.
After several continuances, a hearing was held on October 18, 2023 and a further hearing held on November 6, 2023.
Investigator Klein testified as to the Registrar’s involvement and the above timeline.
Investigator Klein testified that Respondent addressed all of the items on the Directive, but that some work was still needed. For example, Item # 3 paint touch up, was not completed; Item #7 was completed but there were new issues (exposed nails) from the flooring replacement on the second floor; and while Items #16 and 17 were completed there too were new issues such as a high area in the carpet and grout touch up was needed from the tile replacement.
Investigator Klein further testified that a charge for failing to complete a Directive should have been cited but it was not.
Further, Investigator Klein testified that while the Complaint had very general issues, such as multiple doors not hung correctly, when completing the initial jobsite inspection he requested that Complainant just show him the worst doors and then he instructed Respondent to fix the same.
Complainant testified on her own behalf, called Rhett Turner as a witness, and submitted three exhibits into evidence.
Complainant testified that there were many more examples of poor workmanship by Respondent which Investigator Klein did not list in his Written Directive. For example, she tried to point out numerous doors which had defects but Investigator Klein refused to look at others besides the two he referenced in the Directive.
Complainant also testified that she pointed out the other items, such as the doors, but that Respondent did not want to help outside from what was in the Directive.
Further, Complainant testified that she disagreed with Investigator Klein on his findings during the Compliance Inspection, and that all but items 15 and 18, were still incomplete, not fixed correctly, or new issues arose with various repairs.
Finally, Complainant agreed that she turned away trades from repairing, but that was not until February 2023.
Mr. Turner was a licensed contractor in Arizona and Utah, and offered his opinion as the work performed at Complainant’s residence. Mr. Turner testified that he spent one hour walking through the residence and it was his opinion that Respondent’s work was not professional nor workmanlike.
Respondent offered the testimony of Justin Teich and Geoffrey Miller and submitted 13 exhibits into evidence.
Mr. Tiech was Respondent’s Customer Care Manager and oversaw Complainant’s issues with her residence. Mr. Tiech testified that after the complaint was issued he reached out to make repairs, and also addressed issues prior to the Directive being issued and after the Directive expired.
Mr. Tiech also testified that as to the Amended Written Directive, Pulte made repairs to every item and completed the same on December 23, 2022. However, Mr. Tiech admitted that there were some repairs that then created other issues, which Complainant did not allow Respondent to correct. These included the painting of the metal drip edge, issues with some interior trim, the high spot in the carpet, and grout touch up.
Mr. Miller was the Arizona Division Manager of Customer Care. Mr. Miller testified that he was familiar with the Complaint, Amended Written Directive and the Compliance Jobsite Investigation notes. Mr. Miller testified that there was some delay in correcting the floor as there was some dispute as to who was to remove the furniture, but ultimately, the floor was repaired, over and above the Directive requirements. Mr. Miller testified that he made the decision to replace the entire subfloor upstairs and install all new padding, carpet and tile. Mr. Miller acknowledged that but for that complete replacement there would have not been some of the issues which arose with the flooring, which caused the Citation.
Finally, Mr. Miller testified that he wanted to have access to make those repairs but that Complainant refused.
Administrative notice was taken of Respondent’s prior License record on November 21, 2023. Such prior License record reflected that Respondent’s License No. 079383 was first issued on August 1, 1988, and reflected that there were two open complaint, one of which was the present complaint. There were also 27 resolved/settled cases.
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).
At the outset, the tribunal is concerned with the jobsite inspections conducted by Investigator Klein as well as his pencil citation. There was extensive testimony, as well as the admission by Investigator Klein that he did not want to see all of the areas of concern of Complainant. Without fully completing an initial jobsite inspection, any only directing Respondent to correct two doors, for example, did a disservice to Complainant. It also was a disservice to Respondent as instead of addressing all issues, now it just leaves further issues of dispute between the parties. It was clear from the evidence provided that Respondent made repairs and addressed all items in the Written Directive. Further, although there were issues with some of the repairs, as Respondent acknowledged, now there is no meaningful opportunity for Respondent to correct the same. Nor can there be a violation of A.R.S. § 32-1164 (A)(22), because it was not cited in the Citation nor the Notice of Hearing in this matter. While those pleadings did not come from Investigator Klein, rather the Registrar, it appears that the Registrar failed both parties throughout the process of this case.
The preponderance of the evidence established, however that the items which were listed in the Directive were not in conformity with the Registrar’s standards. There was no dispute from Respondent that there were issues with the items in the Directives, and Respondent undertook repairs of the same. 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).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that this case be remanded back to the Registrar for a full inspection and allow sufficient time to make repairs, and have the Registrar complete a full compliance jobsite inspection.
Should the Registrar disagree with that recommendation, then on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 079383 for a period of one day.
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, November 21, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Paul M. Levine
[email redacted]
Todd Baxter
[email redacted]
By: OAH Staff