ALJDEC - Licensing

2022A-11249-CHC-ROC · Registrar of Contractors · 2024-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ashley Madrid,

COMPLAINANT

v.

Conway Homes & Construction LLC

License No. ROC 303608,

RESPONDENT

No. 2022A-11249-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2023

APPEARANCES: Ashley Madrid appeared on her own behalf. Jim Conway, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Conway Homes & Construction, LLC (Respondent) is the holder of License No. 303608 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 30, 2021, Ashley Madrid (Complainant) entered into a contract with Respondent for, among other things, the construction of a new home.

On or about December 8, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Todd Anderson. After a jobsite inspection on September 28, 2022, Investigator Anderson issued his first written directive to Respondent, dated December 29, 2022, 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 1/20/2023.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Driveway concrete has big cracks / separation and chunks coming out of split.

Investigator’s Observation: Observed numerous cracks on the upper portion of sloped driveway. These cracks spanned the width of the driveway. Certain areas of these cracks exceeded 3/32” in width (see pictures. 1-6).

*Contractor should correct by appropriate means.

Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner.

Complaint Item: 2 - Cracks are also in the garage and they all continue to get worse by the day.

Investigator’s Observation: Observed numerous cracks in the garage exceeding 3/32” on top of 6” platform leading into the house, located at north wall of garage. Also noted compound cracks (see pictures 7-11) exceeding 1/16” stemming from the bottom radius of same step-up to platform.

*Contractor should correct by appropriate means.

Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the written directive, Investigator Anderson received additional items from Complainant to add to the complaint. Pursuant to the additional information, a subsequent jobsite inspection was scheduled and conducted, and a subsequent written directive was also issued on January 27, 2023, that provided as follows:

DIRECTIVE REQUIREMENTS

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

Complaint Item: 4 - Master Bathroom tub is still leaking. We will be on our 4th bathtub replacement.

Investigator’s Observation: Observed Master Bathroom tub which was not firmly set in place (loose) and had silicone around the entire bottom perimeter of the tub (which Homeowner acknowledged to have done). Both Contractor and Homeowner declined to fill tub with water to check for leaks. Contractor stated that it should not be loose and agreed to remove and re-attach it to the drain which should fix the leak and stabilize the tub to tile surface. *Contractor shall repair by appropriate means.

Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner.

Complaint Item: 5 - Some tile in the house is cracking and hollow in areas that were repaired a few months ago for the same thing. Large cracks beneath tile in the concrete foundation.

Investigator’s Observation: Observed numerous tiles throughout living room, hallways, and kitchen which were either hollow-sounding, missing grout, or cracked. *Contractor shall repair by appropriate means.

Governing Rule: Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner.

Complaint Item: 6 - Stucco is cracking.

Investigator’s Observation: Observed several areas around exterior of house which had cracks exceeding 1/16” in width. *Contractor shall repair by appropriate means.

Governing Rule: Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner.

Complaint Item: 8 – Half the Retaining Wall is out of plumb by 1 1⁄2”

Investigator’s Observation: Observed an 8’ section of the Retaining Wall which was out of plumb by at least 1 1⁄2”. Noticed the presence of calcium stains throughout the exterior of the wall indicating either water run-off or leaching. Contractor stated he will bring out his engineer to survey the wall and present to contractor a plan to correct the defect. *Contractor shall determine cause of the leaning/failing wall and correct by appropriate means.

Governing Rule: Governing Rule: 32-1154(A)(3) Poor work – Contractor shall perform work in a professional and workmanlike manner

After the deadline in that second written directive expired, Investigator Anderson conducted a compliance inspection on September 19, 2023. Both parties were present at that inspection. At the inspection, Investigator Anderson noted that all of the items contained within the two prior written directives were corrected. However, Complainant advised of a new crack that had presented itself in the concrete slab in the driveway.

Investigator Anderson did not issue any new written directive on this item. He simply verbally instructed Respondent to correct the item. Complainant, at that time, was amenable to allowing Respondent the opportunity to correct the item.

By October 14, 2023 the crack had not yet been corrected and Complainant then chose to ask Investigator Anderson to forward the matter to the Registrar’s legal department.

On October 17, 2023 Respondent’s workers arrived at Complainant’s property in an attempt to correct the item; however, because Complainant had already instructed Investigator Anderson to initiate legal action, Complainant instructed the workers to leave her property.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Anderson testified that the only basis for the citation was the new crack that was discussed at the compliance inspection on September 19, 2023.

Complainant testified that the corrective measures Respondent had taken with respect to the cracks in the driveway referenced as Complaint Item #1 in the original written directive dated December 29, 2022 were subpar. Respondent used, in certain areas, epoxy to remedy the cracks. The epoxy was not working as a permanent corrective fix. Complainant further testified that the new crack (that is the subject of this Citation) occurred in the new concrete slab that was poured as a corrective measure for Complaint Item #1 in the original written directive dated December 29, 2022. Complainant also testified that there was a crack in the area that was previously corrected with epoxy. Finally, Complainant testified that Respondent’s own worker advised that epoxy was not an appropriate correction.

Jim Conway, qualifying party, testified on behalf of Respondent. Mr. Conway testified regarding his frustration at the process of learning of new complaint items, but then not being given enough time or opportunity to correct the items. He further testified that he believed the crack to have been remedied because that was the information he received from his subcontractor. Upon learning that the information was incorrect, workers arrived a couple of days later to fix the crack but were denied access. Mr. Conway stated he wanted to be given an opportunity to address all of the Complainant’s concerns because it was “his name” on the building of the house.

Administrative notice is taken of Respondent’s prior License record on December 13, 2023. Such prior License record reflects that Respondent’s License No. 303608 was first issued on March 3, 2016, and is currently active. Such prior License record also reflects that there was this open complaint and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, no written directive was issued for the new crack discovered on September 19, 2023. However, that crack presented itself in the new concrete slab that was poured in an attempt to correct Complaint Item #1 in the original written directive of December 29, 2023. Notwithstanding, that remedy failed to be an appropriate means of correction because that correction did not last.

Additionally, there were additional cracks that formed over the prior epoxy fixes, also proving that epoxy was not an appropriate means of correction to Complaint #1.

Therefore, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent attempted to complete the corrective work following the Directive being issued. However, the corrective work completed did not prove to be an appropriate means, as evidence by the new cracks forming in a short period of time. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 303608 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, January 2, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff