ALJDEC - Licensing

2022A-10929-CHC-ROC · Registrar of Contractors · 2023-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scot Michael Sidener,

COMPLAINANT

Housing Evolution LLC

License No. ROC 299087,

RESPONDENT

No. 2022A-10929-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2023

APPEARANCES: Justin Fouts appeared via Google Meet on behalf of Complainant Scot Michael Sidener. Maria Olguin appeared on via Google Meet on behalf of Housing Evolution LLC. Registrar of Contractors Investigator Lisa Melton appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Housing Evolution LLC (Respondent) is the holder of License No. 299087 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 28, 2022. Scot Michael Sidener (Complainant) purchased a home from Mabbott Enterprises LLC after the home was remodeled by Respondent. There was a two-year warranty of the work performed by Respondent. The purchase price was $705,000.00.

On or about December 7, 2022, the Registrar received a Complaint containing twenty-two items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Lisa Melton. The jobsite inspection was performed on February 3, 2023.

Investigator Melton then issued a written directive on or about February 17, 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 March 17, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 2: and there is also extensive cracking on the seems of the laundry room walls. The cracking is both interiorly and exteriorly.

Investigator’s Observation: Cracks and seam lines are visible on interior drywall. Respondent should repair all drywall seam lines and cracks one time in first year of occupancy. There is a large stucco crack in the area where the bottom of stucco wall is adjacent to driveway. Respondent should repair all cracks in stucco in excess of 1/16”. Respondent should also correct interior (drywall) and exterior (stucco) repairs that have failed or are incomplete (poorly textured/not or poorly painted).

Governing Rule:

ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item 4: A window and door were removed from the home on the east side and I have cracking and you can see where the window and door were. You can see this cracking both on the exterior and on the interior where it's not covered up by backsplash and the fridge. The crack appears goes all the way through the wall. ;

Investigator’s Observation: Cracking in the interior and exterior wall has been poorly repaired. Cracking is still visible, some areas of texture are flat (inconsistent) and it appears that these areas have either 1) not been painted or 2) insufficiently painted. Respondent should correct these conditions by appropriate methods.

Governing Rule:

Compliance Item 6: The garage floor has appeared to be covered up with thin mortar to hide cracking that has now reappeared. ;

Investigator’s Observation: Coating on garage floor has failed in areas. Coating has cracks and areas where the coating is lumpy and uneven. Respondent should correct this condition by appropriate methods.

Governing Rule:

Compliance Item 7: Many areas of the garage appear to be failing.

Investigator’s Observation: Exterior cracks are addressed in Complaint Item #8. Respondent installed new windows. Interior cracks around windows installed by Respondent should be corrected by appropriate methods.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item 8: The stucco is coming off of the exterior bottom west side of the garage. There is cracking in the stucco on the upper right side of the garage door.

Investigator’s Observation: Stucco is peeling away from subsurface at exterior bottom west corner of garage. Large crack is apparent on upper right side of the garage door. Respondent should correct these conditions by appropriate methods.

Governing Rule:

Compliance Item 10: Many windows do not seem to be installed correctly. A window in the living room I can see from the inside to the outside of the window frame as it's popping out.

Investigator’s Observation: Cracks around windows appear to be missing (shrinking) caulking. Respondent should correct this condition on all windows one time in the first year. Project passed final inspection on February 217, 2022.

Governing Rule:

Compliance Item 13: Some cracks you can clearly see where previously addressed/covered up now that they are visible again.

Investigator’s Observation: There are numerous cracks in stucco and drywall that have failed or are incomplete (poorly textured/not painted). Respondent should correct these conditions.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item 18: Wood for exterior doors have cracked and appear to be coming away from the walls .;

Investigator’s Observation: Doors that exit onto landscaping can be exposed to standing moisture during rain events or watering, this water may cause moisture damage to doors/frames. Respondent should repair caulk on all doors/frames one time in the first year.

Governing Rule:

Compliance Item 19: Back concrete patio: I walked across it one day and my foot broke concrete open and left my footprint and crushed concrete.;

Investigator’s Observation: Coating on patio has failed. Respondent should correct by appropriate methods.

Governing Rule:

Compliance Item 22: Laminate flooring appears to have expanded and makes sounds in certain areas when walked on.

Investigator’s Observation: In some areas, laminate floor does make sound when walked on. Sound is not typically a workmanship concern that can be evaluated, however, while inspecting for sound allegation I also observed flooring that is flexible when stepped on. Respondent should provide copies of required documentation of moisture test (excerpt from NALFA – North American Laminate Flooring Association Installation Guidelines & Methods) to this Investigator. Respondent should correct all instances of flexible flooring.

. . .

Governing Rule:

(All errors contained in the original).

On April 14, 2023, Investigator Melton conducted a Compliance Jobsite Inspection. In her notes regarding the same, Investigator Melton found:

Compliance Item 2: and there is also extensive cracking on the seems of the laundry room walls. The cracking is both interiorly and exteriorly.

Jobsite Inspection - Investigator’s Observation: Cracks and seam lines are visible on interior drywall. Respondent should repair all drywall seam lines and cracks one time in first year of occupancy. There is a large stucco crack in the area where the bottom of stucco wall is adjacent to driveway. Respondent should repair all cracks in stucco in excess of 1/16”. Respondent should also correct interior (drywall) and exterior (stucco) repairs that have failed or are incomplete (poorly textured/not or poorly painted).

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Crack greater than 1/16” still visible in stucco. Exterior repair work has not all been painted. (See CJSI Photo #2 - #3)

Jobsite Inspection - Investigator’s Observation: Cracking in the interior and exterior wall has been poorly repaired. Cracking is still visible, some areas of texture are flat (inconsistent) and it appears that these areas have either 1) not been painted or 2) insufficiently painted. Respondent should correct these conditions by appropriate methods.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Repair has been performed on wall, however, exterior has not been painted. (See CJSI Photo #3)

Governing Rule:

Compliance Item 6: The garage floor has appeared to be covered up with thin mortar to hide cracking that has now reappeared. ;

Jobsite Inspection - Investigator’s Observation: Coating on garage floor has failed in areas. Coating has cracks and areas where the coating is lumpy and uneven. Respondent should correct this condition by appropriate methods.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Coating still shows cracks and is inconsistently applied in some areas. Garage floor is very old existing concrete, Respondent accepted this substrate when they applied the coating. NOTE: There is a square in the garage where coating has never been applied this is not considered an area of inconsistent application. (See CJSI Photo #4 - #5)

Governing Rule:

Compliance Item 7: Many areas of the garage appear to be failing.

Jobsite Inspection - Investigator’s Observation: Exterior cracks are addressed in Complaint Item #8. Respondent installed new windows. Interior cracks around windows installed by Respondent should be corrected by appropriate methods.

Compliance Inspection – Investigator’s Observation: Cracking at windows has been corrected. (No photo)

Compliance Item 8: The stucco is coming off of the exterior bottom west side of the garage. There is cracking in the stucco on the upper right side of the garage door.

Jobsite Inspection - Investigator’s Observation: Stucco is peeling away from subsurface at exterior bottom west corner of garage. Large crack is apparent on upper right side of the garage door. Respondent should correct these conditions by appropriate methods.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Stucco was repaired at exterior bottom but has not been painted. No repair has been made to large crack on upper right side of the garage door. (See CJSI Photo #6 - #7)

Governing Rule:

Compliance Item 10: Many windows do not seem to be installed correctly. A window in the living room I can see from the inside to the outside of the window frame as it's popping out.

Jobsite Inspection - Investigator’s Observation: Cracks around windows appear to be missing (shrinking) caulking. Respondent should correct this condition on all windows one time in the first year. Project passed final inspection on February 217, 2022.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Cracks are still visible at windows. (See CJSI Photo #8 - #9)

Governing Rule:

Compliance Item 13: Some cracks you can clearly see where previously addressed/covered up now that they are visible again.

Jobsite Inspection - Investigator’s Observation: There are numerous cracks in stucco and drywall that have failed or are incomplete (poorly textured/not painted). Respondent should correct these conditions.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Interior hairline cracks remain on interior walls. Remaining exterior cracks are addressed specifically in Items #2, 4, 7, 8 and 18. (See CJSI Photo #10 - #12)

Compliance Item 18: Wood for exterior doors have cracked and appear to be coming away from the walls .;

Jobsite Inspection - Investigator’s Observation: Doors that exit onto landscaping can be exposed to standing moisture during rain events or watering, this water may cause moisture damage to doors/frames. Respondent should repair caulk on all doors/frames one time in the first year.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Crack at front door remains. (See CJSI Photo #13)

Governing Rule:

Compliance Item 19: Back concrete patio: I walked across it one day and my foot broke concrete open and left my footprint and crushed concrete.;

Investigator’s Observation: Coating on patio has failed. Respondent should correct by appropriate methods.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. Coating is messy, inconsistent and still failing. Patio is very old existing concrete, Respondent accepted this substrate when they applied the coating. (See CJSI Photo #14)

Governing Rule:

Compliance Item 22: Laminate flooring appears to have expanded and makes sounds in certain areas when walked on.

Jobsite Inspection - Investigator’s Observation: In some areas, laminate floor does make sound when walked on. Sound is not typically a workmanship concern that can be evaluated, however, while inspecting for sound allegation I also observed flooring that is flexible when stepped on. Respondent should provide copies of required documentation of moisture test (excerpt from NALFA – North American Laminate Flooring Association Installation Guidelines & Methods) to this Investigator. Respondent should correct all instances of flexible flooring.

Compliance Inspection – Investigator’s Observation: NOT COMPLETE. No documentation provided by Respondent. At this inspection, Respondent stated they only installed the flooring in the laundry room. This was not raised at the jobsite inspection. (No photo)

(All errors contained in the original).

On May 5, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

On or about May 22, 2023, Respondent timely submitted an Answer to the Registrar.

On or about June 2, 2023, a Notice of Hearing was issued setting a hearing on July 20, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Melton testified as to the Registrar’s involvement and the above timeline.

Investigator Melton testified that at the time of the Compliance Jobsite Inspection, only the cracking at the windows in the garage had been satisfactorily repaired.

In addition, Investigator Melton testified that she believe that Respondent was allotted sufficient time to make the repairs.

Investigator Melton also testified that on the day that the Directive was to expire, Respondent requested additional time to complete the work. While Complainant refused, Investigator Melton believed that this was justified as only one item had been completed on the Directive.

Scot Michael Sidener testified on his own behalf, and offered 11 exhibits into evidence.

Mr. Sidener testified as to the numerous text messages between him and Cesar (Respondent’s employee), from February 4, 2022 through November 23, 2022, detailing the various issues with the house.

Further, Mr. Sidener testified as to the leaking in the garage and offered a video demonstrating how a manila envelope was wet from the water seeping in.

Mr. Sidener testified because these issues described in the text messages went unrepaired, he filed his Complaint with the Registrar.

Finally, Mr. Sidener testified that Respondent did not commence the corrective work until approximately March 6, 2023, and that he did not grant additional time beyond the March 17, 2023 because Respondent had been stalling and delaying the repairs. Mr. Sidener concluded by testifying that all items besides complaint item seven were still unrepaired.

Maria Olguin testified on behalf of Respondent. She testified that she never had a contract with Complainant and worked directly with the seller of the house.

Ms. Olguin testified that the laundry room had been demolished and rebuilt on the existing slab and all windows were to code and passed City of Phoenix inspections.

Ms. Olguin also disputed the leak in the roof and it was impossible to crawl in the attic to verify the same.

Further, Ms. Olguin testified that she requested more time to complete the Directive work because of the weather.

Administrative notice was taken of Respondent’s prior License record on August 2, 2023. Such prior License record reflected that Respondent’s License No. 299087 was first issued on August 7, 2015, 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 that Respondent’s work was not in conformity with the Registrar’s standards. There was extensive cracking on both the interior and exterior of the drywall, cracking around windows, cracking on the garage floor, stucco was coming off the bottom west side of the garage, the coating on the patio had failed, and the laminate flooring was flexible when walking on the same. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence also established Respondent failed to complete the corrective work following the Directive being issued. The greater weight of the evidence shows that only complaint item 7, the cracking around the windows in the garage, had been repaired. Further, the tribunal finds that Respondent had sufficient time to repair the remaining items and therefore does not find that Complainant was unreasonable in denying an extension of time to Respondent. 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. 299087 for a period of ten days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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, August 2, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Housing Evolution LLC

[email redacted]

Scot Michael Sidener

c/o Justin Fouts

[email redacted]

By: OAH Staff