ALJDEC - Licensing
2022A-11351-CHC-ROC · Registrar of Contractors · 2023-05-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Annette Carlson and
Jeffery Carlson,
COMPLAINANTS,
v.
Sedona Home Improvement, LLC
License No. ROC 271655,
RESPONDENT.
No. 2022A-11351-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 24, 2023
APPEARANCES: Complainants Annette and Jeffery Carlson appeared on their own behalf. David Donohue appeared on behalf of Respondent Sedona Home Improvement, LLC. Arizona Registrar of Contractors Investigator Brandon Smith appeared as a witness. Matt Lindquist appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Sedona Home Improvement, LLC (“Respondent”) is the holder of License No. 271655 issued by the Arizona Registrar of Contractors (“Registrar”). David Donohue is Respondent’s Qualifying Party and an Officer.
On or about December 27, 2021, Annette and Jeffery Carlson (“Complainants”) contracted with Respondent for the remodel of a casita on their property.
On or about December 12, 2022, the Arizona Registrar of Contractors (“Registrar”) received a Complaint against Respondent from Complainants alleging abandonment and poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Brandon Smith. After a December 29, 2022 Jobsite Inspection, Investigator Smith issued a January 6, 2023 Written Directive 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 January 23, 2023.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 – Abandonment
A. Dave Donohue told us the job would be completed in April 2022 and it's still not done.
B. New Front exterior French doors were not installed correctly and do not open from the outside. Dave admitted these doors were not installed correctly but never fixed had them re-installed correctly.
C. Other new exterior door to the right of the French doors is not installed correctly and Dave also knew about this and has gap exposing the interior to the outside. It also does not close easily. He never had it re-installed even though he knew about the problem.;
D. Walls and ceilings were supposed to have a smooth texture but they were very poorly installed and have lumps and flaws all over them in many areas in all of the rooms. ;
E. Incredibly shoddy job of painting walls and ceilings. We purchased expensive paint and the crew couldn't figure out how to apply it so we had to keep buying more paint and they still couldn't get it right, yet Dave apparently continued to charge us over and over again for the re-painting that never got fixed
F. Javier admitted to telling crew members to install molding over kitchen cupboards upside down, thereby destroying the molding that we had purchased and causing us to have to buy more molding and to have to pay to have it reinstalled.
G. We provided all of the lights for Jack of Jack's Electric, one of Dave Donohue's subcontractors and it appears that they installed different recessed lights than the ones we had purchased and asked them to install. Those lights will need to be removed and the recessed lights we gave them will need to be installed instead.
H. They removed a tree and a tree stump, using a backhoe for the tree stump. In doing so, they broke several of our sprinkler lines, which Dave was informed of but did not fix. We had to manually water parts of the yard all season. They also broke the septic line going into the grinder pump and the septic line going out of the grinder pump
Investigator’s Observation: VERIFIED: Job is not finished, Contractor Needs to complete the contract. VERIFIED A through H are not completed.
Governing Rule: 32-1154(A)(1) Abandonment
Compliance Item: 2 - Project required permits, and compliance with City of Sedona Building Planning and Zoning Ordinances:
A. Foreman Javier recently admitted that he and Dave Donohue used 2 x 4's instead of ceiling trusses (and this sounds like a code violation).;
B. Foreman Javier also recently admitted in writing that he and Dave Donohue did unpermitted work on our casita.;
Investigator’s Observation: VERIFIED: Project started and near completed without required permits and compliance with local building, planning and zoning ordinances.
Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(b) Building Codes Section R4-9-108 - Workmanship Standards A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards
All errors in original.
Following the issuance of the Written Directive, the parties participated in a mediation through the City of Sedona. The deadline for the Written Directive was verbally extended to February 8, 2023, in order to accommodate the scheduling of the mediation. The mediation was not successful.
After the deadline for compliance with the Written Directive expired, Investigator Smith determined based upon communications with the parties, that no work was completed after the issuance of the Written Directive notwithstanding the extension.
Thereafter, Investigator Smith forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22). The Registrar did not cite Respondent with a violation of A.R.S. § 32-1154(A)(1), abandonment.
Investigator Smith testified that Complainants entered into a contract with Respondent for the remodel of a casita for a contract price of $60,000.00 and that Complainants have paid $110,000.00 to Respondent. Investigator Smith testified that he could not determine why there was such a difference in price other than “cost overruns” and that it was “not obvious why it grew” to that amount. However, Investigator Smith also testified that there was an addition to the casita structure as a concrete slab had been poured that would have required an inspection of the footings by the local building official, and there were no permits for the addition.
Investigator Smith testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes, and referenced the photographs he took at the Jobsite Inspection. Investigator Smith testified that overall, the project was half to three quarters completed.
Investigator Smith testified that Respondent indicated that Complainants would not allow workers back on the property, however, Respondent did not provide any written verification of such, and Complainants stated that they had never made such statements.
Mr. Carlson testified that Mr. Donohue advised Complainants that they did not need a permit until after the work began. Mr. Carlson further testified that Mr. Donohue also told them that at that point, it was “too late” to obtain a permit and “they would all be in trouble.” Mr. Carlson testified that Complainants were “afraid” because Mr. Donohue instructed them not to have any building officials inspect the work because they too would be “in trouble.” Mr. Carlson asserted that Mr. Donohue “held it over them.”
Mr. Carlson testified in detail regarding the workmanship deficiencies. Specifically concerning the recessed lights, Mr. Carlson testified that Respondent installed the wrong lights despite Complainants providing Respondent with the lights for the installation.
Mr. Carlson further testified regarding the paint issues. Complainants had purchased metallic paint and provided manufacturer instructions to Respondent for its use. The paint as applied by Respondent showed seams, holes in the walls, rough finish, divots, and gouges, and the paint was unevenly applied.
Regarding the crown molding, Mr. Carlson testified that it was incorrectly installed and that a cabinet door could not be opened because of the way in which the molding was installed.
Matt Lindquist, owner of High Country Construction, in Flagstaff, Arizona, testified on behalf of Complainants. Mr. Lindquist testified that the painting performed by Respondent was not good quality and was indicative of poorly installed drywall. The finish was not smooth, there were cracks, misapplied mud, and the paint highlighted the imperfections. Regarding the addition to the casita, Mr. Lindquist testified that there were no footings for the slab and that a permit was required for the addition due to the need for footings. Mr. Lindquist testified that the walls and beams needed to be engineered because load bearing walls were removed and the glulam beam that was installed was not engineered to support the roof, as it appears undersized and load calculations were not performed.
Mr. Donohue testified that initially Complainants were satisfied with Respondent’s work and referenced text messages between the parties’ that were either undated or pre-dated the filed Complaint by several months. Mr. Donohue contended that Complainants filed the Complaint due to a financial dispute.
Mr. Donohue testified that his communications after the issuance of the Written Directive were with Investigator Smith, not Complainants. Mr. Donohue testified that he has no documentary evidence establishing that Complainants denied access and that they only verbally told him at the mediation that they did not want Respondent’s workers back to complete the project.
Regarding the permits, Mr. Donohue testified that he told Complainants “he did not want to pull permits,” he “had no access to architects,” and that the permits “were their responsibility because he was too busy and had no time to do it.” Mr. Donohue testified that he agreed to take on the project because Complainants’ daughter needed a place to live and he “thought it would be a quick refresh of the interior.” Mr. Donohue acknowledged performing the work without a permit because of the “pressure to get the job done” and to “help them out.” Mr. Donohue explained that a permit was needed due to the addition of foundation necessary to convert the area for outdoor sheds into livable space. Mr. Donohue testified that “out of the goodness of his heart [he] turned a blind eye to the rules.”
Mr. Donohue asserted that any workmanship deficiencies would have been remedied during the completion of the project. Regarding the paint, Mr. Donohue testified that he informed Complainants that he would only utilize “regular paint,” and that Complainants assured him that the paint they purchased could be applied “like regular paint,” which was not true. Mr. Donohue testified that Respondent tried rolling, brushing, and spraying the paint, and that Respondent did its “best,” and he suggested “having a professional look at it.”
Administrative notice is taken of Respondent’s prior License record on May 1, 2023. Such prior License record reflects that Respondent’s License No. 271655 was first issued on March 12, 2011, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainants bear 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.”
The credible, substantial, and probative evidence established that Respondent failed to secure the proper permits for the project and performed work without the proper permits. Therefore, Complainants established that Respondent departed from a building code in a material respect that is prejudicial to Complainants, in violation of A.R.S. § 32-1154(A)(2)(b).
The credible, substantial, and probative evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants 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 that Respondent did not complete the required corrective work following the Written Directive being issued, and that valid justification for such failure did not exist. Therefore, Complainants 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. 271655 for a period of five (5) 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).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) 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, May 2, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Brandon Smith
[email redacted]
Sedona Home Improvement, LLC
[email redacted]
Annette and Jeffery Carlson
[email redacted]
By: OAH Staff