ALJDEC - Licensing

2022A-10867-CHC-ROC · Registrar of Contractors · 2024-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Wade and April Olson ,

COMPLAINANT

v.

Horton Enterprises LLC

DBA: D&D Construction & Home

Improvement

License No. ROC 309645,

RESPONDENT

No. 2022A-10867-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 1, 2024, 1:00 P.M.

APPEARANCES: Complainants Steven Wade and April Olson appeared on behalf of themselves; Dion Horton, Owner, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger Geddes

EXHIBITS ADMITTED INTO EVIDENCE: Complainants’ Exhibit Nos. 1-18 (and unmarked videos)

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Horton Enterprises, LLC (“Respondent”), is the holder of License Number 309645 issued by the Registrar of Contractors (“Registrar”).

2. On or about November 30, 2023, Steven Wade and April Olsen (collectively “Complainant”) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work by Respondent in connection with a bedroom and bathroom renovation at a residence in Tempe, Arizona (“project”).

3. The Registrar performed a job site inspection of the project on January 11, 2023. Thereafter, the Registrar issued an initial Written Directive, dated January 24, 2023, and then a second Directive, dated July 13, 2023, requiring Respondent to remedy the following violations by appropriate means by July 31, 2023:

Compliance Item #1: South shower wall was framed by the contractor with a sloped (crocked - or not plumb- not square with the floor/ceiling), this also shows in the tile work.

Investigator’s Observation: Verified the corner of the shower enclosure (left of shower head) is not plumb or flat. I measured the area with a four foot level and noted there was a gap that exceeded 3/16 inch. A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 2-3

Governing Rule: 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 Item #6: Many of the shower and tub trim kits were unpackaged for installation and then subsequently laid in piles on the ground - much of it is scratched and damaged.

Investigator’s Observation: Verified both parties agreed that the fixtures were about to be installed but the Respondent experienced a delay after the fixtures had been unpackaged. I saw that there were multiple fixtures laying in a pile on the corner. I saw examples of the damage to the finish of the fixtures. The contractor has a responsibility to provide fixtures in new condition. It is the Respondent’s responsibility to safeguard the uninstalled fixtures. The contractor should identify all fixtures where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 6-9

Governing Rule: 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 Item #7: The tub was unpackaged for installation, and then subsequently not installed. It was not re-covered or re-packaged, and debris was allowed to collect in the tub (what looks to be thin-set and drywall chunks). It appears to be scratched now.

Investigator’s Observation: Both parties agreed that the fixtures were about to be installed but the Respondent experienced a delay after the fixtures had been unpackaged. I saw that the bath tub was covered in plastic; however, there was a large tear in the plastic on the top. There was debris inside the bath tub. I saw scratches on the interior surface of the bath tub. The contractor has a responsibility to provide fixtures in new condition. It is the Respondent’s responsibility to safeguard the uninstalled fixtures. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 8, 10-11

Governing Rule: 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 Item #8: The tile laid at the end of the pony wall that divides the shower area from the tub area is visibly not square.

Investigator’s Observation: Verified The Complainant provided a carpenter’s square. I saw that the pony wall (end) was not square. A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 12-13

Governing Rule: 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 Item #9: The tile floor is scratched now because it was done at the beginning of the project, and it was not protected as the contractor assured it would be. Subsequent construction was carried out and the floor has been damaged.

Investigator’s Observation: The Complainant explained that the tile was installed before any other work was done and the workers did not cover the flooring to protect it. I saw there were small scratches on the floor surface in the primary bedroom and bathroom. I noted there was a substantial amount of construction debris on the floor and there was no apparent effort to protect the flooring. The Respondent is responsible for safeguarding the installed flooring while additional construction takes place. The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 14-15

Governing Rule: 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 Item #16: 2 existing windows in the structure were replaced. The windows appear to be "pressed" into the opening causing the frame to be distorted, the screen and sash do not seat properly in the bottom of the window.

Investigator’s Observation: Verified The Complainant demonstrated that the two windows in the primary bedroom did not completely close. I inspected the windows and noted they had a high spot in the center of the window and the window panel could be rocked up/down to either side. The windows did not close completely and latching/unlatching was not consistent. Windows should operate smoothly with reasonable ease and should be able to close completely. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 24-28

Governing Rule: 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 Item #17: In the primary area of the bedroom, the drywall on the south wall, the outlets have been encased in mud such that that an outlet bezel can’t be installed.

Investigator’s Observation: Verified I saw that three outlets in the primary bedroom had been completely sealed in the electrical box with drywall. The screw holes to attach a cover plate had been covered. A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 29-32

Governing Rule: 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.

4. The Registrar performed Compliance Job Site Inspections on April 18, 2023, and August 16, 2023 (incorrectly dated in notes as August 23, 2023), at which time it made the following findings at the latter inspection:

Compliance Item #5: The copper lines that come through the slab were imbedded in the concrete; the older construction placed the copper lines in plastic sleeves where they penetrated the slab, presumably to provide relief as the concrete shifts and settles.

Investigator’s Observation: Verified – Corrective Work is Not Complete Compliance Jobsite Inspection 08/23/2023: I saw that the Respondent had removed floor/wall tiles and opened the concrete to reveal the coper water lines. The copper water lines had been wrapped with ‘ProSelect 10 mil thick pipe wrap’. However, I could see and feel that the pipe wrap did not fully cover the 90° elbow in the copper line nor did it appear to extend under the slab where the copper pipe was still in direct contact with the concrete (08/03/2023 CJSI P10-11). The Respondent has not complied with the Written Directive dated 07/13/2023. Written Directive – 07/13/2023 At the CJSI, the Complainant showed me new evidence of Compliance Item #5. I reviewed this evidence with the consent of the Respondent. The new evidence (camera scope) revealed poor workmanship. Using the camera scope provided by the Complainant, I saw that the copper pipes in the bathroom appeared to be placed in direct contact with concrete (CJSI P7). 2018 International Residential Code (IRC), Section P2603.3 states, “Metallic piping, except for cast iron, ductile iron and galvanized steel, shall not be placed in direct contact with steel framing members, concrete or masonry. Metallic piping shall not be placed in direct contact with corrosive soil. Where sheathing is used to prevent direct contact, the sheathing material thickness shall be not less than 0.008 inch (8 mil) (0.203 mm) and shall be made of plastic. Where sheathing protects piping that penetrates concrete or masonry walls or floors, the sheathing shall be installed in a manner that allows movement of the piping within the sheathing.” ROC Workmanship Standards for Licensed Contractors (June 2009) states, R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...A contractor shall perform all work in a professional and workmanlike manner. A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code. The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) CJSI P7

Governing Rule: A.R.S. § 32-1154(A)(3); 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); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

Compliance Item #9: The tile floor is scratched now because it was done at the beginning of the project, and it was not protected as the contractor assured it would be. Subsequent construction was carried out and the floor has been damaged.

Investigator’s Observation: Verified – Corrective work was conducted; however the condition remains. Compliance Jobsite Inspection 08/23/2023: I visually inspected the floor tiles using the following method: “When visually inspecting finished ceramic, stone, and glass tile installations, do so without magnification under the permanent intended lighting (artificial and/or natural) and without the use of additional lighting such as flashlight, spotlights, or temporary lights. View the installation 36” from walls and 60” or normal standing height from floors. Recognizing the hand-built aspect of tile installations, any aesthetic concerns not visible at these distances (but apparent at closer distances) are acceptable.” I saw there were multiple areas within the primary bedroom/bathroom floor that were scratched and visible under the permanent intended lighting from the standing position. Upon closer inspection, I noted that each area could also be felt under my fingernail. The Respondent has not complied with the Written Directive dated 07/13/2023. Compliance Jobsite Inspection 04/18/2023: I saw there were still scratches throughout the floor. The flooring material is porcelain which is very hard and not suitable for extensive mechanical polishing/buffing. The color layer of porcelain tile is essentially “printed” on the surface and then hardened. The scratches are not visible in the photographs; however, they were readily visible to the eye. The significant amount of remaining scratches on the porcelain tiles are not acceptable. Jobsite Inspection 01/11/2023: The Complainant explained that the tile was installed before any other work was done and the workers did not cover the flooring to protect it. I saw there were small scratches on the floor surface in the primary bedroom and bathroom. I noted there was a substantial amount of construction debris on the floor and there was no apparent effort to protect the flooring. The Respondent is responsible for safeguarding the installed flooring while additional construction takes place. The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 14-15 Governing Rule: 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.

5. The Registrar then issued a Citation to Respondent, dated August 30, 2023, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. A Pre-Hearing Inspection was conducted on March 27, 2024, and the Registrar made the following findings:

Compliance Item #5: The copper lines that come through the slab were imbedded in the concrete; the older construction placed the copper lines in plastic sleeves where they penetrated the slab, presumably to provide relief as the concrete shifts and settles.

Investigator’s Observation: Verified – Corrective Work is Not Complete Compliance Jobsite Inspection 08/23/2023: I saw that the Respondent had removed floor/wall tiles and opened the concrete to reveal the coper water lines. The copper water lines had been wrapped with ‘ProSelect 10 mil thick pipe wrap’. However, I could see and feel that the pipe wrap did not fully cover the 90° elbow in the copper line nor did it appear to extend under the slab where the copper pipe was still in direct contact with the concrete (08/03/2023 CJSI P10-11). The Respondent has not complied with the Written Directive dated 07/13/2023. Written Directive – 07/13/2023 At the CJSI, the Complainant showed me new evidence of Compliance Item #5. I reviewed this evidence with the consent of the Respondent. The new evidence (camera scope) revealed poor workmanship. Using the camera scope provided by the Complainant, I saw that the copper pipes in the bathroom appeared to be placed in direct contact with concrete (CJSI P7). 2018 International Residential Code (IRC), Section P2603.3 states, “Metallic piping, except for cast iron, ductile iron and galvanized steel, shall not be placed in direct contact with steel framing members, concrete or masonry. Metallic piping shall not be placed in direct contact with corrosive soil. Where sheathing is used to prevent direct contact, the sheathing material thickness shall be not less than 0.008 inch (8 mil) (0.203 mm) and shall be made of plastic. Where sheathing protects piping that penetrates concrete or masonry walls or floors, the sheathing shall be installed in a manner that allows movement of the piping within the sheathing.” ROC Workmanship Standards for Licensed Contractors (June 2009) states, R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...A contractor shall perform all work in a professional and workmanlike manner. A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code. The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) CJSI P7

Governing Rule: A.R.S. § 32-1154(A)(3); 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); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

Compliance Item #9: The tile floor is scratched now because it was done at the beginning of the project, and it was not protected as the contractor assured it would be. Subsequent construction was carried out and the floor has been damaged.

Investigator’s Observation: Verified – Corrective work was conducted; however the condition remains. Compliance Jobsite Inspection 08/23/2023: I visually inspected the floor tiles using the following method: “When visually inspecting finished ceramic, stone, and glass tile installations, do so without magnification under the permanent intended lighting (artificial and/or natural) and without the use of additional lighting such as flashlight, spotlights, or temporary lights. View the installation 36” from walls and 60” or normal standing height from floors. Recognizing the hand-built aspect of tile installations, any aesthetic concerns not visible at these distances (but apparent at closer distances) are acceptable.” I saw there were multiple areas within the primary bedroom/bathroom floor that were scratched and visible under the permanent intended lighting from the standing position. Upon closer inspection, I noted that each area could also be felt under my fingernail. The Respondent has not complied with the Written Directive dated 07/13/2023. Compliance Jobsite Inspection 04/18/2023: I saw there were still scratches throughout the floor. The flooring material is porcelain which is very hard and not suitable for extensive mechanical polishing/buffing. The color layer of porcelain tile is essentially “printed” on the surface and then hardened. The scratches are not visible in the photographs; however, they were readily visible to the eye. The significant amount of remaining scratches on the porcelain tiles are not acceptable. Jobsite Inspection 01/11/2023: The Complainant explained that the tile was installed before any other work was done and the workers did not cover the flooring to protect it. I saw there were small scratches on the floor surface in the primary bedroom and bathroom. I noted there was a substantial amount of construction debris on the floor and there was no apparent effort to protect the flooring. The Respondent is responsible for safeguarding the installed flooring while additional construction takes place. The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 14-15 Governing Rule: 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.

7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing after a continuance for April 1, 2024, 1:00 P.M. At the hearing, Complainants Steven Wade and April Olson testified on their own behalf; Respondent presented the testimony of Dion Horton, Owner. Mark Nipp, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit Nos. 1 - 18 and the unmarked videos; Respondent did not submit exhibits.

8. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directives and his job inspection notes. Specifically, he stated that both parties agreed that Respondent would demo the tile initially installed by Respondent and replace it with new tile. However, he stated that this new tile installed was also scratched as he observed hundreds of micro-scratches on the floor that were obvious and that his fingernail would catch on the scratches. He also testified that he observed that the south closet tile was not level as it appeared that new tile had been installed over old tile in the south closet. He stated also that an area near the shower was not level.

9. Complainant Steven Wade testified, as herein relevant to the Citation, that the parties had agreed to demo all tile that had been installed by Respondent and replace it, with the exception of the tile installed by Respondent in the closet. (Complainant’s Exhibit No. 15). He presented photographs of the new tile depicting the present scratches (Complainant’s Exhibit No. 16), as well as photographs showing the incomplete shower with the exposed copper lines. (Complainant’s Exhibit No. 18). He also presented a video that showed Respondent’s worker kicking tile spacers out, as well as a worker dragging his knees over the uncleaned tile. With regard to the closets, he stated the transition tile is sloped upward to meet the closet tile which he believed to be caused by tiling over tile. As to the copper pipe, he testified there is still a small portion of unprotected pipe at the elbow abutting concrete.

10. Complainant April Olson testified, as herein relevant to the Citation, that she believed tile had been laid over the existing tile in the closet even though the expectation was that the closet would not be retiled.

11. Dion Horton testified on behalf of Respondent, as herein relevant to the Citation, that he could neither confirm nor deny the allegations because he had not been to the site since January 12, 2024. He stated he removed the entire floor that he had initially installed and replaced it with brand new flooring. He further testified he had confirmed the scratches on this initially-installed floor that he stated were caused by his drywall contractor and also by his later polishing. With regard to the copper piping, he stated he completed the copper piping wrap but did not complete the shower because he believed he needed the Investigator to examine the piping for compliance. He further acknowledged the unlevel floor area near the shower and the areas entering the closets but denied the latter was caused by installing tile over tile.

12. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued License No. 309645 on February 14, 2017, and is presently in active status. The site also reflects one Open case, no Disciplined cases, and one Resolved/Settled case.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case was Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”

6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a). Respondent stated it could not admit or deny Complainant’s allegations.

With regard to Complaint Item No. 9 concerning the newly-installed tile, while neither side could establish the precise cause of the scratches, Complainant has shown by the preponderance of evidence that they were caused in some manner by Respondent and not caused by Complainant. The Tribunal further finds the unlevel flooring near the shower and the closets resulting from Respondent’s corrective work to constitute a failure to perform work in a professional and workmanlike manner.

With regard to Complaint Item No. 5 regarding the copper pipe sheathing, the Tribunal finds that Respondent failed to completely cover the pipe in order to avoid direct contact with the concrete. The Tribunal finds such to be a failure to perform work in a professional and workmanlike manner.

7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. Further, the corrective action was not performed in a professional and workmanlike manner. Although the Tribunal acknowledges that Respondent made several attempts at corrective action, the recent inspection of the work reflects that it was not fully corrected. There was no evidence presented of a valid justification for failing to adequately correct the work.

8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Horton Enterprises, LLC’s, License No. 309645 is suspended for two (2) days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the 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, April 22, 2024.

/s/ Roger A. Geddes

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Horton Enterprises, LLC

DBA: D&D Construction & Home Improvement

P.O. Box 23384

Phoenix, AZ 85063

[email redacted]

Steven Wade

8404 S. Kachina Dr.

Tempe, AZ 85284

[email redacted]

By: OAH Staff