ALJDEC - Licensing
2022A-07294-CHC-ROC · Registrar of Contractors · 2024-02-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bradford White Fiske,
COMPLAINANT
v.
Kevin B. Howard Architects Inc.
An Arizona Corporation
License No. ROC 283314,
RESPONDENT
No. 2022A-07294-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 9, 2023 with the record held open until January 19, 2023.
APPEARANCES: Complainant Bradford White Fiske appeared via Google Meet. Michael Woodlock, Esq. appeared on behalf of Respondent Kevin B. Howard Architects Inc. via Google Meet. Registrar of Contractors Investigator John Smith appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Kevin B. Howard Architects, Inc. (Respondent) is the holder of License No. 283314 issued by the Arizona Registrar of Contractors (Registrar).
On or about May, 2021, Bradford White Fiske (Complainant) agreed to purchase a home from Respondent who was building the same.
On or about August 25, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on October 19, 2022. An Amended Complaint was filed and an additional jobsite inspection was conducted.
Investigator Smith then issued an amended written directive on or about May 10, 2023, 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 June 7, 2023.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Library not installed (Poliform)”
Investigator’s Observations: Verified.
The complainant stated this has been installed; however, one piece is still on order.
The respondent confirmed one piece still needs to be received and installed
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “Specified appliances not installed (Miele Refrigerator, Freezer, Wine Refrigerator, Dishwasher)”
Investigator’s Observations: Verified.
As explained and confirmed by both parties:
• The under counter refrigerator currently installed in the kitchen needs to be relocated to the casita/studio.
• The wine refrigerator for the kitchen needs to be delivered and installed.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: “Specified barbeque not installed.”
Investigator’s Observations: Verified.
As confirmed by the respondent:
• The installed grill is not the correct grill per contract.
• The correct grill is on site, but not installed.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 5: “House leaks.”
Investigator’s Observations: Verified.
The theater room floor is below grade.
• Moisture stains are still present in the carpet.
As confirmed by the respondent:
• Moisture has come through from the exterior to the interior.
• The foundation in this area needs to be sealed from the exterior and interior.
• All moisture damage needs to be corrected, including the moisture stained carpet.
Garage windows:
• Not all garage windows properly sealed/flashed at the exterior.
• Tile installed below the windows is higher than the base of the window frames allowing water collection and water intrusion.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “Steel panels poorly installed.”
Investigator’s Observations: Verified.
Interior and exterior steel panels:
• Uneven and inconsistent spacing between panels.
• Some panels warped
• Poorly aligned corners
• Uneven and inconstant gaps at ends of steel panels
• Blemishes in/under paint
• Some panels stained/discolored
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 7: “Glass railings poorly installed.”
Investigator’s Observations: Verified.
Glass panels installed in the welded guardrails:
• Tops of some panels are not set at matching heights
• Bottoms of some panels not set at matching heights
• Some panels are not centered in the space between the balusters/posts
• Some panels are not centered in the thickness of the balusters/posts
• Some panels edges are not parallel with the balusters/posts
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 8: “Glass bridges not installed correctly.”
Investigator’s Observations: Verified.
As confirmed by the respondent:
• The individual pads below the glass walking panels are to be replaced with continuous pads
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 10: “Rusting”
Investigator’s Observations: Verified.
Rust colored stains at the bottoms of some windows and doors
There are rust colored stains along the bottoms of some of the windows at the bottoms of some of the door frames.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 11: “Sliding window wall is warped and won’t lock.”
Investigator’s Observations: Verified.
As confirmed by the respondent, a replacement side jamb has been ordered and will be replaced to correct the operation of this door.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 12: “Three doors without locksets.”
Investigator’s Observations: Verified.
As confirmed by the respondent:
• One patio door needs the strike component installed
• One patio door needs to be adjusted
• One patio door needs to be rekeyed
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 15: “Theater wall needs to be rebuilt with proper alignments.”
Investigator’s Observations: Verified.
The theater room is not built in accordance with the plans.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 16: “Interior garage doors not yet installed.”
Investigator’s Observations: Verified.
There are two closet spaces in garage with no doors:
• Plans specify doors installed at both locations
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 17: “MBR vanity moving panel not replaced.”
Investigator’s Observations: Verified.
As confirmed by the respondent:
• The motorized panel behind the mirror needs to be replaced
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 18: “Studio refrigerator not installed.”
Investigator’s Observations: Verified.
As explained and confirmed by both parties:
• The under counter refrigerator currently installed in the kitchen needs to be relocated to the casita/studio.
• The wine refrigerator for the kitchen needs to be delivered and installed.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 19: “Construction debris dumped on adjacent lot (which we own)”
Investigator’s Observations: Verified.
There is construction debris on adjoining lot
• Tile scraps match exterior tile on house.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 20: “For three months we have lived with construction about four days a week with no end in sight.”
Investigator’s Observations: Verified.
Included in an email from the respondent dated 9/30/2022:
• “C of O was attained on April 19, 2022”
• “Final completion and move in date was May 15th, 2022”
As confirmed by the respondent, there are portions of this project that need to be corrected, and portions that need to be completed.
As verified during this inspection, and specified in other Complaint Items, there are portions of this project that need to be corrected, and portions that need to be completed.
The date of this inspection, 10/19/2022, is 157 days past the date identified by the respondent as “Final completion”
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Governing Rule: A.R.S. § 32-1154(A)(8): Failure in a material respect by the licensee to complete a construction project...
Complaint Item 21: “The door sills at the main entrance, studio main entrance, laundry area door, bedroom two door, and LR sliding glass doors leak, and allow access by witnessed scorpions and small rattlesnakes.”
Investigator’s Observations: Verified.
Observed conditions specific to poorly sealed exterior doors:
• Torn sweep(s)
• Gaps / visible daylight
• Protruding threshold screws
• Loose threshold screws
• Dented thresholds
• Gaps between doors and weather stripping
• Weep holes covered/blocked
• Exterior grade too high in at least one location
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 22: “Screens have neither been provided nor installed in BR2 and the Studio, The one provided for the LR won't recess because the track isn't installed correctly.”
Investigator’s Observations: Verified.
As confirmed by the respondent:
• Two screens are missing and need to be provided/installed
• Two screens need to be adjusted/corrected
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 23: “The code-required smoke detectors (9) are defectively installed or the breaker is defective as is a downlight - an electrician has been promised for 6-8 weeks.”
Investigator’s Observations: Verified.
The respondent agreed:
• To repair as needed to ensure proper operation/function of all smoke detectors.
• To correct the defective downlight above the fireplace.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
10/13/2022 email from R: ...This item will be added to the punch list for completion as soon as possible.
Complaint Item 26: “Repairs to interior and exterior caulking were started but never completed.”
Investigator’s Observations: Verified.
The respondent acknowledged the interior and exterior caulking needs to be completed.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 27: “Some of the cracked flooring tiles not replaced.”
Investigator’s Observations: Verified.
There are cracked tiles.
As stated in the Arizona Workmanship Standards, the acceptable tolerance for cracked tiles is: None.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 28: “HVAC zone 3 as identified in the drawings which are the basis of the contract doesn't exist, so it is impossible to cool BR3 without freezing the entire first level.”
Investigator’s Observations: Verified.
The main house structure does have 3 HVAC systems / 3 zones as specified in the plans.
The respondent acknowledged the HVAC systems need to be balanced.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 30: “...I don't believe the stairs are code compliant (first riser on interior stair is 8.5" high, exterior stair risers vary from 7.4" to 6.25", etc.)...permissable riser differentials and learned that 3/8" was the normally code compliant acceptable variance. The two platforms have riser differentials of 4 1/8" to 5 3/8" on the west, and 5 1/8" to 5 7/8" on the east. The exterior stairs to level 2 start at 7 3/8" at the bottom to 6 1/4" at the top...
...I regretfully ask for an Addendum Item Inspection: to address the interior and exterior stairs compliance with the UBC or another governing code. The built reality is an interior stair with risers varying from 8.75" at the bottom and 7.8" at the top with most risers between 8.25" and 8.4" and treads of 11.85" - an exterior stair with risers ranging from 7.4" at the bottom to 6.2" at the top - and three riser exterior platforms whose risers are 4.25" to 5.15" and 5" to 5.6"...
...Not only are there code compliance issues with the irregularity of the stair riser heights, but given that the rise of the interior stair is 122.5" and you designed it and built it with fifteen risers which would average 8.17" - you knowingly designed and constructed a stair in direct violation of the IBC.”
Investigator’s Observations: Verified.
Current conditions on site:
Interior stairs:
• Riser heights vary from 7-3/4 inches to 8-1/2 inches.
Exterior stairs from the patio to the landing
• Riser heights vary from 4-1/8 inches to 5-1/8 inches.
Exterior stairs from the landing too the upper level
• Riser heights vary from 6-1/8 inches to 7-3/8 inches.
Supporting information:
Plans, page T1.0 “General Notes and Conditions” states:
• “All construction shall confirm to the INTERNATIONAL RESIDENTIAL CODES latest edition and local amendments.”
Plans, page T2.0 “General” states:
• “ALL CONSTRUCTION SHALL CONFIRM TO THE 2012 EDITION OF THE INTERNATIONAL BUILDING CODE INCLUDING CITY OF TUCSON AMENDMENTS.”
• Contrary to the respondent’s written response, this statement does not include the words “as applicable”
Highlighted portions of plans submitted by the respondent include:
• 14. Stairs (if applicable) per: IRC R314
• 15. Railings (if applicable) per: IRC R315
Information from the International Residential Code (IRC), editions 2012, 2015, and 2018:
• IRC R314 is titled “Smoke Alarms”.
o IRC R314 does not include any information on stairs.
• IRC R315 is titled “Carbon Monoxide Alarms”.
o IRC R315 does not include any information on stairs.
Definitions:
• IBC, Section 202, and also IRC Chapter 2
o Stair:
• A change in elevation, consisting of one or more risers.
o Flight:
• A continuous run of rectangular treads, winders, or combination thereof from one landing to another.
• Occupational Safety and Health Act 1910.21(b) Definitions:
o Ship stair (ship ladder):
•Means a stairway that is equipped with treads, stair rails, and open risers, and has a slope that is between 50 and 70 degrees from the horizontal.
In response to the respondent’s statement that the interior stairs are a “Ships ladder”, not stairs:
• Based on code definitions for “Stair” and “Flight”, the interior stairs are stairs.
• Neither the IRC nor the IBC include definitions of a ships ladder.
• Based on the definition from the Occupational Safety and Health Act, the current interior stairs do not qualify as a ships ladder. The current interior stairs do not have a slope between 50 and 70 degrees; therefore, do not meet the definition of a Ships Ladder.
• Additionally, the plans have a specific detail for the interior stairs.
• The plans include no information or details for a ships ladder in any location.
Plans, Page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies riser heights to be 7”
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies openings in risers to be a maximum of 3.9”
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies the tread depths to be a minimum of 11”
Plans, page T2.0 “General” states:
• “...Where no specific detail is shown, construction shall conform to similar work on the project...”
Plans, page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
The plans do not include a separate detail specific for the exterior stairs.
Based on the included General Note, the exterior stairs shall confirm to the detail for the interior stairs.
Plans, Page D1.1, Detail 27, “Metal Stairs” also includes a note specifying to field verify total rise and run for exterior stairs at finish condition.”
Plans, page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
The note within the detail confirms this detail was also the detail for the exterior stairs.
The note within the “General” section confirms this detail was also the detail for the exterior stairs.
Code references specific to exceeding the maximum allowable height for risers:
(As specified on pages T1.0 and t2.0 of the plans: All construction is to confirm to the IRC and the IBC)
• IRC R311.7.5.1Risers. Includes:
“The riser height shall be not more than 73/4 inches (196 mm)....At open risers, openings located more than 30 inches (762 mm), as measured vertically, to the floor or grade below shall not permit the passage of a 4-inch-diameter (102 mm) sphere.”
• IBC 1011.5.2 Includes:
“Stair riser heights shall be 7 inches (178 mm) maximum...”
Code references specific to exceeding the maximum allowable variation of riser heights:
(As specified on pages T1.0 and T2.0 of the plans: All construction is to confirm to the IRC and the IBC)
• IRC R311.7.5.1Risers. Includes:
“...The greatest riser height within any flight of stairs shall not exceed the smallest by more than 3/8 inch (9.5 mm)...” (Emphasis added)
• IBC 1011.5.4 States:
“Stair treads and risers shall be of uniform size and shape. The tolerance between the largest and smallest riser height or between the largest and smallest tread depth shall not exceed 3/8 inch (9.5 mm) in any flight of stairs.” (Emphasis added)
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar;
Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes...
Complaint Item 31: “......there are two large broken exterior tiles, and many hollow interior tiles...”
Investigator’s Observations: Verified.
There are at least two visibly cracked/broken tiles.
The complainant pointed out three large format tiles that appear to be hollow through the tile.
The respondent acknowledged his intention to replace all cracked broken tiles, and the three tiles identified as being mostly hollow sounding.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 32: “...the library lighting control...”
Investigator’s Observations: Verified.
The recessed light/luminaire in the ceiling at the top of the interior stairs is controlled by a switch located in the garage.
The respondent stated this is scheduled to be corrected.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 33: “...front entry lighting switch...”
Investigator’s Observations: Verified.
The switches inside the main entry door control light fixtures directly outside the main entry door.
Other exterior lights, leading to the drive/parking area, are controlled by switches inside the casita.
As specified on page E1.0 of the plans, these exterior lights are to be wired to, and controlled by, switches inside the main entry door of the main house.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 35: “...a shattered paver at the midpoint of the interior bridge...”
Investigator’s Observations: Verified.
One glass floor tile within the glass bridge is shattered.
The respondent stated this has been ordered and will be replaced.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;
Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
(All errors contained in the original)
After a Complainant Jobsite Inspection on June 13, 2023, On June 28, 2021, the Registrar, on June 16, 2023, issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).
On or about June 30, 2023, timely submitted an Answer the Registrar.
On or about July 13, 2023, a Notice of Hearing was issued setting a hearing on September 1, 2023 at the Office of Administrative Hearings, an independent state agency.
On November 8, 2023, Investigator Smith conducted a prehearing inspection. His notes regarding the same indicated the following:
Prehearing Jobsite Inspection
Present for the Complainant: Brad Fiske, Sue Hu
Present for the Respondent: Frank Rivera, Michael Woodlock
Initial Directive issued: 11/3/2022
Amended Directive Issued: 5/10/2023
Compliance Inspection: 6/13/2023
Prehearing Inspection: 8/29/2023
Prehearing Inspection: 11/8/2023
11/3/2022 to 6/13/2023 equals 222 Days
5/10/2023 to 6/13/2023 equals 34 Days
11/3/2022 to 6/13/2023 equals 222 Days
5/10/2023 to 6/13/2023 equals 34 Days
6/13/2023 to 8/29/2023 equals an additional 77 Days
6/13/2023 to 11/8/2023 equals an additional 148 Days
Prehearing Jobsite Inspection General Notes:
This Prehearing Inspection was to evaluate the current conditions of item(s) requiring corrective action as stated on the Directive. Those item(s) are listed below.
As stated on the Directive: Complaint Item 1: “Library not installed (Poliform)”
Investigator’s Observations from initial inspection: Verified.
The complainant stated this has been installed; however, one piece is still on order.
The respondent confirmed one piece still needs to be received and installed
Compliance Inspection Findings for this item: The complainant stated this is finished.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 3: “Specified appliances not installed (Miele Refrigerator, Freezer, Wine Refrigerator, Dishwasher)”
Investigator’s Observations from initial inspection: Verified.
As explained and confirmed by both parties:
• The under counter refrigerator currently installed in the kitchen needs to be relocated to the casita/studio.
• The wine refrigerator for the kitchen needs to be delivered and installed.
Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been performed; however, the current conditions do not meet ROC Workmanship Standards.
The wine refrigerator is now installed; however, the incorrect toe kick plate in installed.
8/29/23 Prehearing Inspection Findings for this item: The complainant stated this is now complete.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 4: “Specified barbeque not installed.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent:
• The installed grill is not the correct grill per contract.
• The correct grill is on site, but not installed.
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 5: “House leaks.”
Investigator’s Observations from initial inspection: Verified.
The theater room floor is below grade.
• Moisture stains are still present in the carpet.
As confirmed by the respondent:
• Moisture has come through from the exterior to the interior.
• The foundation in this area needs to be sealed from the exterior and interior.
• All moisture damage needs to be corrected, including the moisture stained carpet.
Garage windows:
• Not all garage windows properly sealed/flashed at the exterior.
• Tile installed below the windows is higher than the base of the window frames allowing water collection and water intrusion.
Compliance Inspection Findings for this item: The complainant stated this is done, and there have not been any roof leaks since the last repair.
8/29/23 Prehearing Inspection Findings for this item: This was previously stated to have been corrected. However, there were no recent rains at the time to confirm. As a result of recent rains, there are now several reported leaks in the house, including but not limited to: the theater room, the patio door window wall, the master bedroom, etc.
The respondent acknowledged the leaks, stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
11/8/23 Prehearing Inspection Findings for this item: During the 8/29/23 jobsite inspection, the respondent acknowledged ongoing leaks, and stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
Since that inspection, corrective work has been performed in some areas; however, there has been no recent rain to confirm if the recent work is satisfactory or not.
The respondent confirmed, that as of today’s date, no corrective work has been performed to eliminate the leak at the theater room.
Areas of rust are still visible on outdoor surfaces such as window and door components.
As stated on the Directive: Complaint Item 6: “Steel panels poorly installed.”
Investigator’s Observations from initial inspection: Verified.
Interior and exterior steel panels:
• Uneven and inconsistent spacing between panels.
• Some panels warped
• Poorly aligned corners
• Uneven and inconstant gaps at ends of steel panels
• Blemishes in/under paint
• Some panels stained/discolored
Compliance Inspection Findings for this item: The complainant stated this is done and acceptable.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished and acceptable.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 7: “Glass railings poorly installed.”
Investigator’s Observations from initial inspection: Verified.
Glass panels installed in the welded guardrails:
• Tops of some panels are not set at matching heights
• Bottoms of some panels not set at matching heights
• Some panels are not centered in the space between the balusters/posts
• Some panels are not centered in the thickness of the balusters/posts
• Some panels edges are not parallel with the balusters/posts
Compliance Inspection Findings for this item: The complainant stated this is done, and acceptable.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished and acceptable.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 8: “Glass bridges not installed correctly.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent:
• The individual pads below the glass walking panels are to be replaced with continuous pads
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 10: “Rusting”
Investigator’s Observations from initial inspection: Verified.
Rust colored stains at the bottoms of some windows and doors
There are rust colored stains along the bottoms of some of the windows at the bottoms of some of the door frames.
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This was previously stated to have been corrected. However, there were no recent rains at the time to confirm. As a result of recent rains, there are now several reported leaks in the house, including but not limited to: the theater room, the patio door window wall, the master bedroom, etc.
As stated by the complainant, the leaks are causing additional areas of rust.
The respondent acknowledged the leaks, stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
11/8/23 Prehearing Inspection Findings for this item: During the 8/29/23 jobsite inspection, the respondent acknowledged ongoing leaks, and stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
Since that inspection, corrective work has been performed in some areas; however, there has been no recent rain to confirm if the recent work is satisfactory or not.
The respondent confirmed, that as of today’s date, no corrective work has been performed to eliminate the leak at the theater room.
Areas of rust are still visible on outdoor surfaces such as window and door components.
As stated on the Directive: Complaint Item 11: “Sliding window wall is warped and won’t lock.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent, a replacement side jamb has been ordered and will be replaced to correct the operation of this door.
Compliance Inspection Findings for this item: The complainant stated this is done and acceptable.
8/29/23 Prehearing Inspection Findings for this item: This was previously stated to have been corrected. However, there were no recent rains at the time to confirm resistance to weather. As a result of recent rains, there are now several reported leaks in the house, including but not limited to: the theater room, the patio door window wall, the master bedroom, etc.
The respondent acknowledged the leaks, stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
11/8/23 Prehearing Inspection Findings for this item: During the 8/29/23 jobsite inspection, the respondent acknowledged ongoing leaks, and stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
Since that inspection, corrective work has been performed in some areas; however, there has been no recent rain to confirm if the recent work is satisfactory or not.
The respondent confirmed, that as of today’s date, no corrective work has been performed to eliminate the leak at the theater room.
Areas of rust are still visible on outdoor surfaces such as window and door components.
As stated on the Directive: Complaint Item 12: “Three doors without locksets.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent:
• One patio door needs the strike component installed
• One patio door needs to be adjusted
• One patio door needs to be rekeyed
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 15: “Theater wall needs to be rebuilt with proper alignments.”
Investigator’s Observations from initial inspection: Verified.
The theater room is not built in accordance with the plans.
Compliance Inspection Findings for this item: The complainant stated this is done and good now.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished and acceptable.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 16: “Interior garage doors not yet installed.”
Investigator’s Observations from initial inspection: Verified.
There are two closet spaces in garage with no doors:
• Plans specify doors installed at both locations
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 17: “MBR vanity moving panel not replaced.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent:
• The motorized panel behind the mirror needs to be replaced
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 18: “Studio refrigerator not installed.”
Investigator’s Observations from initial inspection: Verified.
As explained and confirmed by both parties:
• The under counter refrigerator currently installed in the kitchen needs to be relocated to the casita/studio.
• The wine refrigerator for the kitchen needs to be delivered and installed.
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 19: “Construction debris dumped on adjacent lot (which we own)”
Investigator’s Observations from initial inspection: Verified.
There is construction debris on adjoining lot
• Tile scraps match exterior tile on house.
Compliance Inspection Findings for this item: The complainant stated the debris has been removed, and hydro-seeding was recently completed.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 20: “For three months we have lived with construction about four days a week with no end in sight.”
Investigator’s Observations from initial inspection: Verified.
Included in an email from the respondent dated 9/30/2022:
• “C of O was attained on April 19, 2022”
• “Final completion and move in date was May 15th, 2022”
As confirmed by the respondent, there are portions of this project that need to be corrected, and portions that need to be completed.
As verified during this inspection, and specified in other Complaint Items, there are portions of this project that need to be corrected, and portions that need to be completed.
The date of this inspection, 10/19/2022, is 157 days past the date identified by the respondent as “Final completion”
Compliance Inspection Findings for this item: There are still portions of this project that need to be corrected.
8/29/23 Prehearing Inspection Findings for this item: There are still portions of this project that need to be corrected.
11/8/23 Prehearing Inspection Findings for this item: There are still portions of this project that need to be corrected.
As stated on the Directive: Complaint Item 21: “The door sills at the main entrance, studio main entrance, laundry area door, bedroom two door, and LR sliding glass doors leak, and allow access by witnessed scorpions and small rattlesnakes.”
Investigator’s Observations from initial inspection: Verified.
Observed conditions specific to poorly sealed exterior doors:
• Torn sweep(s)
• Gaps / visible daylight
• Protruding threshold screws
• Loose threshold screws
• Dented thresholds
• Gaps between doors and weather stripping
• Weep holes covered/blocked
• Exterior grade too high in at least one location
Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been performed; however, the current conditions do not meet ROC Workmanship Standards.
Two doors have torn sweeps.
8/29/23 Prehearing Inspection Findings for this item: This sweeps were stated to have been corrected. However, as a result of recent rains, there are now several reported leaks in the house, including but not limited to: the theater room, the patio door window wall, the master bedroom, etc.
The respondent acknowledged the leaks, stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
11/8/23 Prehearing Inspection Findings for this item: During the 8/29/23 jobsite inspection, the respondent acknowledged ongoing leaks, and stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
Since that inspection, corrective work has been performed in some areas; however, there has been no recent rain to confirm if the recent work is satisfactory or not.
The respondent confirmed, that as of today’s date, no corrective work has been performed to eliminate the leak at the theater room.
Areas of rust are still visible on outdoor surfaces such as window and door components.
As stated on the Directive: Complaint Item 22: “Screens have neither been provided nor installed in BR2 and the Studio, The one provided for the LR won't recess because the track isn't installed correctly.”
Investigator’s Observations from initial inspection: Verified.
As confirmed by the respondent:
• Two screens are missing and need to be provided/installed
• Two screens need to be adjusted/corrected
Compliance Inspection Findings for this item: The complainant stated all screens have been installed.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 23: “The code-required smoke detectors (9) are defectively installed or the breaker is defective as is a downlight - an electrician has been promised for 6-8 weeks.”
Investigator’s Observations from initial inspection: Verified.
The respondent agreed:
• To repair as needed to ensure proper operation/function of all smoke detectors.
• To correct the defective downlight above the fireplace.
Compliance Inspection Findings for this item: The complainant stated this is finished.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Directive: Complaint Item 26: “Repairs to interior and exterior caulking were started but never completed.”
Investigator’s Observations from initial inspection: Verified.
The respondent acknowledged the interior and exterior caulking needs to be completed.
Compliance Inspection Findings for this item: The complainant stated this is done and acceptable.
8/29/23 Prehearing Inspection Findings for this item: This was previously stated to have been corrected. However, there were no recent rains at the time to confirm. As a result of recent rains, there are now several reported leaks in the house, including but not limited to: the theater room, the patio door window wall, the master bedroom, etc.
As stated by the complainant, the leaks are causing additional areas of rust.
The respondent acknowledged the leaks, stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
11/8/23 Prehearing Inspection Findings for this item: During the 8/29/23 jobsite inspection, the respondent acknowledged ongoing leaks, and stated they have a plan to correct all leaks, but was not willing to explain what that plan was.
Since that inspection, corrective work has been performed in some areas; however, there has been no recent rain to confirm if the recent work is satisfactory or not.
The respondent confirmed, that as of today’s date, no corrective work has been performed to eliminate the leak at the theater room.
Areas of rust are still visible on outdoor surfaces such as window and door components.
As stated on the Directive: Complaint Item 27: “Some of the cracked flooring tiles not replaced.”
Investigator’s Observations from initial inspection: Verified.
There are cracked tiles.
As stated in the Arizona Workmanship Standards, the acceptable tolerance for cracked tiles is: None.
Compliance Inspection Findings for this item: This has NOT been corrected.
There are still cracked floor tiles.
8/29/23 Prehearing Inspection Findings for this item: This has NOT been corrected. The respondent confirmed no corrective work specific to interior tiles has been started.
11/8/23 Prehearing Inspection Findings for this item: There are still cracked interior floor tiles.
As stated on the Directive: Complaint Item 28: “HVAC zone 3 as identified in the drawings which are the basis of the contract doesn't exist, so it is impossible to cool BR3 without freezing the entire first level.”
Investigator’s Observations from initial inspection: Verified.
The main house structure does have 3 HVAC systems / 3 zones as specified in the plans.
The respondent acknowledged the HVAC systems need to be balanced.
Compliance Inspection Findings for this item: The complainant stated this has been done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Amended Directive: Complaint Item 30: “...I don't believe the stairs are code compliant (first riser on interior stair is 8.5" high, exterior stair risers vary from 7.4" to 6.25", etc.)...permissable riser differentials and learned that 3/8" was the normally code compliant acceptable variance. The two platforms have riser differentials of 4 1/8" to 5 3/8" on the west, and 5 1/8" to 5 7/8" on the east. The exterior stairs to level 2 start at 7 3/8" at the bottom to 6 1/4" at the top...
...I regretfully ask for an Addendum Item Inspection: to address the interior and exterior stairs compliance with the UBC or another governing code. The built reality is an interior stair with risers varying from 8.75" at the bottom and 7.8" at the top with most risers between 8.25" and 8.4" and treads of 11.85" - an exterior stair with risers ranging from 7.4" at the bottom to 6.2" at the top - and three riser exterior platforms whose risers are 4.25" to 5.15" and 5" to 5.6"...
...Not only are there code compliance issues with the irregularity of the stair riser heights, but given that the rise of the interior stair is 122.5" and you designed it and built it with fifteen risers which would average 8.17" - you knowingly designed and constructed a stair in direct violation of the IBC.”
Investigator’s Observations from the addendum items inspection: Verified.
Current conditions on site:
Interior stairs:
• Riser heights vary from 7-3/4 inches to 8-1/2 inches.
Exterior stairs from the patio to the landing
• Riser heights vary from 4-1/8 inches to 5-1/8 inches.
Exterior stairs from the landing too the upper level
• Riser heights vary from 6-1/8 inches to 7-3/8 inches.
Supporting information:
Plans, page T1.0 “General Notes and Conditions” states:
• “All construction shall confirm to the INTERNATIONAL RESIDENTIAL CODES latest edition and local amendments.”
Plans, page T2.0 “General” states:
• “ALL CONSTRUCTION SHALL CONFIRM TO THE 2012 EDITION OF THE INTERNATIONAL BUILDING CODE INCLUDING CITY OF TUCSON AMENDMENTS.”
• Contrary to the respondent’s written response, this statement does not include the words “as applicable”
Highlighted portions of plans submitted by the respondent include:
• 14. Stairs (if applicable) per: IRC R314
• 15. Railings (if applicable) per: IRC R315
Information from the International Residential Code (IRC), editions 2012, 2015, and 2018:
• IRC R314 is titled “Smoke Alarms”.
o IRC R314 does not include any information on stairs.
• IRC R315 is titled “Carbon Monoxide Alarms”.
o IRC R315 does not include any information on stairs.
Definitions:
• IBC, Section 202, and also IRC Chapter 2
o Stair:
• A change in elevation, consisting of one or more risers.
o Flight:
• A continuous run of rectangular treads, winders, or combination thereof from one landing to another.
• Occupational Safety and Health Act 1910.21(b) Definitions:
o Ship stair (ship ladder):
• Means a stairway that is equipped with treads, stair rails, and open risers, and has a slope that is between 50 and 70 degrees from the horizontal.
In response to the respondent’s statement that the interior stairs are a “Ships ladder”, not stairs:
• Based on code definitions for “Stair” and “Flight”, the interior stairs are stairs.
• Neither the IRC nor the IBC include definitions of a ships ladder.
• Based on the definition from the Occupational Safety and Health Act, the current interior stairs do not qualify as a ships ladder. The current interior stairs do not have a slope between 50 and 70 degrees; therefore, do not meet the definition of a Ships Ladder.
• Additionally, the plans have a specific detail for the interior stairs.
• The plans include no information or details for a ships ladder in any location.
Plans, Page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies riser heights to be 7”
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies openings in risers to be a maximum of 3.9”
Plans, Page D1.1, Detail 27, “Metal Stairs” Specifies the tread depths to be a minimum of 11”
Plans, page T2.0 “General” states:
• “...Where no specific detail is shown, construction shall conform to similar work on the project...”
Plans, page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
The plans do not include a separate detail specific for the exterior stairs.
Based on the included General Note, the exterior stairs shall confirm to the detail for the interior stairs.
Plans, Page D1.1, Detail 27, “Metal Stairs” also includes a note specifying to field verify total rise and run for exterior stairs at finish condition.”
Plans, page A2.0 specifies Detail 27 on page D1.1 as the detail for the interior stairs.
The note within the detail confirms this detail was also the detail for the exterior stairs.
The note within the “General” section confirms this detail was also the detail for the exterior stairs.
Code references specific to exceeding the maximum allowable height for risers:
(As specified on pages T1.0 and t2.0 of the plans: All construction is to confirm to the IRC and the IBC)
• IRC R311.7.5.1Risers. Includes:
“The riser height shall be not more than 73/4 inches (196 mm)....At open risers, openings located more than 30 inches (762 mm), as measured vertically, to the floor or grade below shall not permit the passage of a 4-inch-diameter (102 mm) sphere.”
• IBC 1011.5.2 Includes:
“Stair riser heights shall be 7 inches (178 mm) maximum...”
Code references specific to exceeding the maximum allowable variation of riser heights:
(As specified on pages T1.0 and T2.0 of the plans: All construction is to confirm to the IRC and the IBC)
• IRC R311.7.5.1Risers. Includes:
“...The greatest riser height within any flight of stairs shall not exceed the smallest by more than 3/8 inch (9.5 mm)...” (Emphasis added)
• IBC 1011.5.4 States:
“Stair treads and risers shall be of uniform size and shape. The tolerance between the largest and smallest riser height or between the largest and smallest tread depth shall not exceed 3/8 inch (9.5 mm) in any flight of stairs.” (Emphasis added)
Compliance Inspection Findings for this item: This has NOT been corrected.
No physical work has been started.
Since the Amended Directive was issued on May 10, 2023, the respondent has provided a total of three proposed “shop drawings” indicating how the stairs will be corrected. (Two were provided by email, one was brought to the compliance inspection.)
None of these proposed drawings are in compliance with the plans:
Proposed “shop drawings”, emailed from the respondent 6/5/2023, for interior stairs specifies riser heights are to be 7.67 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
Proposed “shop drawings”, emailed from the respondent 6/5/2023, for interior stairs specifies tread depths are to be 10-1/8 inches
• Plans and applicable codes specify tread depths are to be a minimum of 11 inches
Proposed “shop drawings”, emailed from the respondent 6/5/2023, for exterior stairs specifies three riser heights are to be in excess of 7 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
Proposed “shop drawings”, emailed from the respondent 6/5/2023, for exterior stairs specifies removal of tile, finishing of underlying concrete, and leaving underlying concrete exposed.
• The current stairs have tile treads
• The plans specify tile treads to match residence, not concrete.
Proposed “shop drawings”, emailed from the respondent 6/9/2023, for interior stairs specifies riser heights are to be 7.67 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
Proposed “shop drawings”, emailed from the respondent 6/9/2023, for interior stairs specifies tread depths are to be 10-1/8 inches
• Plans and applicable codes specify tread depths are to be a minimum of 11 inches
Proposed “shop drawings”, emailed from the respondent 6/9/2023, for exterior stairs specifies three riser heights are to be in excess of 7 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
Proposed “shop drawings”, shown by the respondent during the compliance inspection 6/13/2023, for interior stairs specifies riser heights are to be 7.67 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
Proposed “shop drawings”, shown by the respondent during the compliance inspection 6/13/2023, for interior stairs specifies tread depths are to be 10-1/8 inches
• Plans and applicable codes specify tread depths are to be a minimum of 11 inches
Proposed “shop drawings”, shown by the respondent during the compliance inspection 6/13/2023, for exterior stairs specifies three riser heights are to be in excess of 7 inches
• Plans and applicable codes specify riser heights are to be a maximum of 7.0 inches
8/29/23 Prehearing Inspection Findings for this item:
• Exterior stairs: there is work in progress.
• Interior stairs: no corrective work has been started.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
• Exterior stairs: have been completed, the complainant stated the current condition of the exterior stars is acceptable.
• Interior stairs: No corrective work has been started.
As stated on the Amended Directive: Complaint Item 31: “......there are two large broken exterior tiles, and many hollow interior tiles...”
Investigator’s Observations from the addendum items inspection: Verified.
There are at least two visibly cracked/broken tiles.
The complainant pointed out three large format tiles that appear to be hollow through the tile.
The respondent acknowledged his intention to replace all cracked broken tiles, and the three tiles identified as being mostly hollow sounding.
Compliance Inspection Findings for this item: This has NOT been corrected.
There are still cracked floor tiles.
There are still hollow tiles.
8/29/23 Prehearing Inspection Findings for this item: This has NOT been corrected. The respondent confirmed no corrective work specific to exterior tiles has been started.
11/8/23 Prehearing Inspection Findings for this item: There are still cracked tiles, and hollow tiles.
As stated on the Amended Directive: Complaint Item 32: “...the library lighting control...”
Investigator’s Observations from the addendum items inspection: Verified.
The recessed light/luminaire in the ceiling at the top of the interior stairs is controlled by a switch located in the garage.
The respondent stated this is scheduled to be corrected.
Compliance Inspection Findings for this item: The complainant stated this is fixed.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Amended Directive: Complaint Item 33: “...front entry lighting switch...”
Investigator’s Observations from the addendum items inspection: Verified.
The switches inside the main entry door control light fixtures directly outside the main entry door.
Other exterior lights, leading to the drive/parking area, are controlled by switches inside the casita.
As specified on page E1.0 of the plans, these exterior lights are to be wired to, and controlled by, switches inside the main entry door of the main house.
Compliance Inspection Findings for this item: This has NOT been corrected.
As specified in emails from the respondent, the respondent is intending to correct this by adding automation, meaning wireless control.
• The plans specify these exterior lights are to be hardwired to this switch.
The complainant may be willing to accept this as a solution; however, there is no written agreement between the parties for this item, and the work has not been performed.
8/29/23 Prehearing Inspection Findings for this item: This complainant stated this has been corrected by automation, and is acceptable.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
As stated on the Amended Directive: Complaint Item 35: “...a shattered paver at the midpoint of the interior bridge...”
Investigator’s Observations from the addendum items inspection: Verified.
One glass floor tile within the glass bridge is shattered.
The respondent stated this has been ordered and will be replaced.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Compliance Inspection Findings for this item: The complainant stated this is done.
8/29/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
11/8/23 Prehearing Inspection Findings for this item: This item was not re-evaluated. This item was previously stated to have been finished.
(All errors contained in the original).
After a continuance, a hearing was held on November 9, 2023. Investigator Smith testified as to the Registrar’s involvement and the above timeline.
At hearing, Investigator Smith testified that over 370 days had elapsed and more corrective work is needed.
As to the theatre room, as and other measures to control the leaking, Investigator Smith testified that it was apparent that corrective work was performed, however, he could not conduct a water test and that the real determination of whether the remediation was effective would be when there was a significant rain event.
Mr. Fiske testified on his own behalf and offered 15 exhibits into evidence. He testified generally that the timeframe had been ludicrous and that Mr. Howard only repaired the items once the Registrar became involved.
In addition, Mr. Fiske testified that while the exterior stairs were completed to his satisfaction, he recently signed off of the plans to have the interior stairs corrected in December 2023. Further, he testified that some of the cracked tiles were located around the stairs which not going to be repaired until the stairs were repaired.
As to the theatre room leaks, Mr. Fiske testified that corrective work was performed to move the water runoff from the roof away from the theatre room, but that he had no faith that these corrections would stop the room from leaking.
Respondent offered the testimony of Kevin B. Howard and Frank Rivera and offered ten exhibits into evidence.
Mr. Howard testified that he believed the stairs were under code per the “open loft” exception.
In addition, Mr. Howard testified that numerous tiles have been repaired but that it seems to be a moving target as to which tiles need to be repaired.
As to the theatre room, Mr. Howard testified as to the extensive measures it undertook to prevent leaking, and while tests were performed successfully and he was confident in the repairs, it would take a major rain event to truly know how successful the repairs were.
Mr. Rivera testified that this project had always been at the top of his list, but there were a lot of hurdles including the lack of manpower. He testified further, that there was a period in June 2023, when Mr. Fiske did not allow him to perform work because Mr. Fiske had family staying in his residence.
Also, Mr. Rivera testified that he could probably look at old timecards to prepare a summary for Mr. Fiske of the corrective work performed which would have a two year warranty.
On January 17, 2024, Complainant provided a status update as to what remained. As to the items on the Complaint, Complainant noted that the two glass railing panels had not been installed. On January 19, 2024, Respondent provided a status update on the work and acknowledged that the two glass railing panels had been ordered and would be installed upon receipt.
Administrative notice was taken of Respondent’s prior License record on February 2, 2024. Such prior License record reflected that Respondent’s License No. 283314 was first issued on February 14, 2013, and reflected that there was one open complaint, namely the present complaint.
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 the stairs were not built according to plans. Thus, Respondent was in violation of A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(2)(b), and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b);
The preponderance of the evidence established, and Respondent did not dispute that Respondent’s work was not in conformity with the Registrar’s standards as to the items mentioned on the Amended Directive. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A)
The evidence established Respondent failed to fully complete the corrective work following the Directive being issued. However, at the hearing Complainant allowed Respondent to have until January 19, 2024 to complete the items. It appeared from the status report that all items were repaired, but for a broken exterior tile which was had to be ordered and the two glass railings. 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. 283314 for a period of two days.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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.
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, February 2, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Bradford White Fiske
[email redacted]
Michael S. Woodlock, Esq.
[email redacted]
By: OAH Staff