ALJDEC - Licensing
2022A-11450-CHC-ROC · Registrar of Contractors · 2023-12-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robin Dahlberg,
COMPLAINANT
v.
M Construction LLC
License No. ROC 307636,
RESPONDENT
No. 2022A-11450-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 14, 2023
APPEARANCES: Complainant Robin Dahlberg appeared on her own behalf. Michael Brown, Manager, appeared on behalf of M Construction LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Agency record submitted from the Registrar of Contractors
_____________________________________________________________________
FINDINGS OF FACT
M Construction LLC (Respondent) is the holder of License No. 307636 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 21, 2021, Robin Dahlberg (Complainant) entered into a contract with Respondent for a new home.
On or about July 29, 2022, Complainant moved into the home.
On or about August 1, 2022, Complainant texted Respondent regarding a 30-day walkthrough and asked if someone could come to the house to look at something. Complainant also stated that she did not know why she had to wait 30 days to let Respondent know that her appliances were scratched.
On or about December 20, 2022, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project.
Complainant filed an addendum complaint.
The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a 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 June 12, 2023. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Poorly installed grout in master bath, guest bath and kitchen. grout missing ,cracking and falling out.
Investigator’s Observation: Grout has voids and checks at the listed locations.
The respondent is to correct the condition one time in the first year. . . .
Compliance Item: 2 - Caulking around sinks not completely finished
Investigator’s Observation: This is as stated at the undermount sinks.
The respondent is to correct the condition in an appropriate manner one time in the first year. . . .
Compliance Item: 3 - Tile flooring through out the house has lippage and incorrectly spaced
Investigator’s Observation: Several locations of lippage were noted.
This floor was in the process of being replaced at the time of the addendum inspection.
The respondent is to complete the correction in an appropriate manner. . . .
Compliance Item: 5 - All baseboards, corner blocks through out the house are installed incorrectly, rough, scratched and not properly painted.
Investigator’s Observation: The fit of the corner base is consistent with industry practices in production housing.
The finish however is poorly done.
The respondent is to correct the condition in an appropriate manner when the base gets replaced after the flooring is complete. . . .
Compliance Item: 6 - All doors are rough and poorly painted.
Investigator’s Observation: The doors and jambs are poorly painted.
Doors have peeling paint at the bottom and one door has a painted over paint flake by the knob.
There is one door jamb that had a gouge that was sanded and the painted instead of being filled first.
Runs are present, different sheen paint is present.
The respondent is to correct the doors and jambs in an appropriate manner. . . .
Compliance Item: 7 - Most cabinets throughout the house are installed incorrectly, scratched, warped, cracked, discolored, blemished and side panels are cut up scratched and peeling.
Investigator’s Observation: Skins are scratched, panels are scratched, poor color repair is present, doors have splits from overtightened fasteners, kick boards are either poorly installed or missing altogether,
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 8 - Most dovetails on draws are not done properly.
Investigator’s Observation: Several drawers have very poor connection between the dovetails.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 9 - South east bedroom right side door frame paint issues.
Investigator’s Observation: There are runs on the jamb at this door.
The respondent is to correct the condition in an appropriate manner. . .
Compliance Item: 10 - Guest hallway door frame for linen closet has paint issues
Investigator’s Observation: Door jamb paint issues have been directed for corrections. . . .
Compliance Item: 11 - Guest bath grout done poorly
Investigator’s Observation: Grout is addressed in item 1. . . .
Compliance Item: 12 - Guest bath tub had gouges in it that were filled and not finished
Investigator’s Observation: There is deficient finish on the right hand side of the tub.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 14 - Guest bath cabinet door has a crack.
Investigator’s Observation: This is as stated. A screw for the handle is over tightened.
The respondent is to correct the condition in an appropriate. . . .
Compliance Item: 19 - Master shower texture on ceiling missing.
Investigator’s Observation: There are several spots above the shower head that have no texture.
The respondent is to correct the condition in an appropriate manner. . .
Compliance Item: 20 - Master shower ceiling excess paint over grout.
Investigator’s Observation: The paint cut in at the top of the shower is poorly done.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 24 - Master bath has excess grout on window frames
Investigator’s Observation: A deficiency was not noted at this location regarding grout but there was paint on the grout.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 27 - Master shower handle crooked.
Investigator’s Observation: The trim ring with the Hot/Cold arrow is out of alignment.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 30 - Kitchen sink right side drain poorly installed. missing putty
Investigator’s Observation: There are voids in the putty.
The respondent is to correct the condition one time and homeowner maintenance thereafter. . . .
Compliance Item: 31 - Kitchen granite, I was unable to select was cracked, chipped, scratched and epoxied.
Investigator’s Observation: Several issues were noted with the granite, namely at the island. Several of the locations are pit where the material characteristics change and is not a workmanship issue.
There is a crack in the field of the island and is to be corrected in an appropriate manner. . . .
Compliance Item: 32 - Refrigerator is scratched and doors unaligned.
Investigator’s Observation: This is as stated.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 33 - Dishwasher is scratched.
Investigator’s Observation: This is as stated and the respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 34 - Stovetop scratched.
Investigator’s Observation: This is as stated.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 35 - Chimney hood above stovetop scratched
Investigator’s Observation: This is as stated. At the right hand side of the front of the hood.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 36 - Oven door dented
Investigator’s Observation: This is as stated. The interior finish is chipped and dented on the door.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 39 - Front door dented, scratched and has paint runs
Investigator’s Observation: I did not note any dents but paint deficiencies were present.
The respondent is to correct the condition in an appropriate manner one time in the first year. . . .
Compliance Item: 44 – Neighbor’s driveway installed on my property
Investigator’s Observation: The respondent confirmed this.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 46 - Patio deck lid has peeling paint
Investigator’s Observation: Paint was not peeling but the paint work was poor as is the edge treatment for the texture. . . .
Compliance Item: 47 - Patio deck lid finished poorly
Investigator’s Observation: The texture at the perimeter of the lid is poor and does not match the 'field' texture.
At the time of the addendum inspection, the texture had been correct but was unpainted.
The respondent is to correct the condition in an appropriate manner. . . .
Compliance Item: 48 - Exhaust system for HVAC per trade was installed Incorrectly
Investigator’s Observation: This is at the West end of the home, the piping had an odd design and was unpainted.
At the time of the addendum inspection, the odd design had been removed but now the pipe is incomplete and not painted properly.
The respondent is to correct the condition in an appropriate manner.
Following the issuance of the written directive, Respondent corrected many of the issues identified in the written directive.
On or about July 6, 2023, Investigator Dimond performed a compliance jobsite inspection. Investigator Dimond recorded the following observations of the jobsite:
Compliance Findings: Texture at baseboard in numerous locations has flat spots, unpainted areas and texture that doesn’t closely match. Texture at the patio lid perimeter is poorly done
In sporadic areas, wall paint is on the new floor. The floor termination at the front door threshold is poorly done.
Several door casings are not complete, filled and painted.
The cabinets are not completed and corrections have not been made.
Fresh air intake pipe is not complete.
Granite side splash has pulled away from the top.
The respondent is not in compliance with the directive
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).
Investigator Dimond testified that he had performed a prehearing inspection the day before the hearing and noted minor cosmetic issues and damage to the appliances remained. Investigator Dimond noted that the Registrar’s standards requires a homeowner report damage to appliances within 10 days of move-in.
Complainant testified that she was told to wait until the 30-day walkthrough to bring up her concerns, but she had attempted to discuss the damaged appliances before that date. Complainant also denied removing any toe kicks deliberately, but stated that while cleaning, so of them came off from her use of a broom or mop.
Mr. Brown testified that Complainant purposefully removed the toe kicks. Mr. Brown denied that Respondent failed to comply with the written directive. Mr. Brown also stated that Respondent was not responsible for the damage to the appliances.
Administrative notice is taken of Respondent’s prior License record on December 11, 2023. Such prior License record reflects that Respondent’s License No. 307636 was first issued on August 26, 2016, and is active. Such prior License record also reflects that there were two open complaints and five resolved/settled complaints against Respondent’s license.
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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Those items listed in the written directive, including the scratched appliances, were attributable to Respondent’s work on the project, and Respondent was timely notified of the issues with the appliances. 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 that Respondent did not complete all of the corrective work following the Directive being issued. 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. 307636 for a period of two 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 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 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, December 11, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
M Construction LLC
[email redacted]
Robin Dahlberg
[email redacted]
Jim Dimond
[email redacted]
By: OAH Staff