ALJDEC - Licensing
2023A-04007-CHC-ROC · Registrar of Contractors · 2023-10-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Renee M. Beaton,
COMPLAINANT,
v.
Magnolia Home Builder, PLLC
License No. ROC 322613,
RESPONDENT.
No. 2023A-04007-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 26, 2023
APPEARANCES: Complainant Renee Beaton appeared on her own behalf. Christine Miller appeared on behalf of Respondent Magnolia Home Builder, PLLC. Arizona Registrar of Contractors Investigator James Carter appeared as a witness. Stephen Lawton also appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Magnolia Home Builder, PLLC (“Respondent”) is the holder of License Number 322613 issued by the Arizona Registrar of Contractors (“Registrar”). Christine Miller is Respondent’s Manager.
On or about April 15, 2021, Renee Beaton (“Complainant”) contracted with Respondent for the construction of Complainant’s home.
On or about April 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator James Carter. After a May 1, 2023 Jobsite Inspection, at which both parties were present, Investigator Carter issued a Written Directive dated May 5, 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 June 2, 2023.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - chips and scratches on quartz in kitchen
Investigator’s Observation: Verified. Inspector observed a number of chips in the counter as well as scratches. While the Registrar standard is to report surface damages within 10 days Respondent advised they had previously worked on the scratches which were still visible. The Respondent will need to correct this by the appropriate means.
Compliance Item: 2 - Touch up exterior paint does not match
Investigator’s Observation: Verified. Inspector observed a number of areas were the paint appears to be flashing. The Respondent will need to correct this by the appropriate means.
Compliance Item: 4 - not hot water in kitchen sink or dishwasher
Investigator’s Observation: Home is equipped with a recirculating pump. Respondent should determine cause on correct by appropriate means
Compliance Item: 8 - Trusses cracked
Investigator’s Observation: Verified. Inspector observed a cracked truss in the attic. The Respondent will need to correct this by the appropriate means.
Compliance Item: 9 - mechanical paint on sliders /windows
Investigator’s Observation: Verified. Inspector observed a number of window frames with scratches on/or some sort of substance on the window frames. The Respondent will need to correct this by the appropriate means.
Compliance Item: 11 - doors knobs latch cracked on several interior doors
Investigator’s Observation: Verified. Inspector observed a number of doors that had cracks or splitting at the door latches. The Respondent will need to correct this by the appropriate means.
Compliance Item: 12 - doors/ trims/ deadbolts
Investigator’s Observation: Verified. Several doors in the home as well as the service door on the detached garage, the deadbolts do not line up and close. Dirt and dust are also coming in at the bottoms of the doors The Respondent will need to correct this by the appropriate means.
Compliance Item: 13 - texture and trim
Investigator’s Observation: Verified. Inspector observed poor texture in the master bathroom nook area. The Respondent will need to correct this by the appropriate means.
Compliance Item: 14 - nails and trim
Investigator’s Observation: Verified. Inspector observed several nail pops in the door casing and trim through out the home. The Respondent will need to correct this by the appropriate means.
Compliance Item: 15 - gap in cabinets /3soft close doors and cracked corners
Investigator’s Observation: Verified. Inspector observed a number of cabinets and drawers in the kitchen and laundry room that need to be adjusted. The Respondent will need to correct this by the appropriate means.
Compliance Item: 17 - Windows , seals don’t close properly
Investigator’s Observation: Verified. Window in master bedroom extremely difficult to open. The Respondent will need to correct this by the appropriate means.
Compliance Item: 22 - wire above cabinet
Investigator’s Observation: Verified. There is no cover over the J-Box. The Respondent will need to correct this by the appropriate means.
Compliance Item: 23 - cracked and chips all over new patio concrete
Investigator’s Observation: Verified. Inspector observed a number of areas that were pitted and or bad finishes on the rear patio. The Respondent will need to correct this by the appropriate means.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 3 - farm sink in laundry room leaks in cabinet
Investigator’s Observation: During inspection, the complaint item was completed/corrected.
Compliance Item: 5 - heater tag by southwest gas fire hazard
Investigator’s Observation: Unable to determine reason for original tag. Confirmed with SWG and correspondence from SWG after tag was applied that all service were functioning. The Respondent is not responsible for this issue.
Compliance Item: 6 - Kitchen refrigerator has to be pulled put to open door
Investigator’s Observation: Item was completed as per original contract and meets minimum workmanship standards.
Compliance Item: 7 - our plans were to include 2 air conditioner's we only have 1
Investigator’s Observation: The allegation does not constitute poor workmanship.
Compliance Item: 10 - cracked ceiling on patio
Investigator’s Observation: No evidence to prove or disprove complaint item constitutes poor work. Normal conditions such as hairline cracks where drywall meets a dissimilar material should be considered acceptable and can be readily corrected by homeowner. Contractor should repair nail pops, seam lines and other hairline cracks one time within first year of occupancy.
Compliance Item: 16 - grout/tile or missing in front of dishwasher and master shower and JJ bath tub
Investigator’s Observation: Complaint item meets minimum industry standards. No correction is required.
Compliance Item: 18 - recirculation pump missing back flow valve
Investigator’s Observation: Complaint item meets minimum industry standards and was passed by County Code Inspection. No correction is required.
Compliance Item: 19 - bathroom sink drains
Investigator’s Observation: Complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Compliance Item: 20 - draining and grading /garage floods
Investigator’s Observation: Unable to verify, no evidence to prove or disprove complaint item constitutes poor work.
Compliance Item: 24 - Driveway compaction
Investigator’s Observation: The Complainant provided no evidence to support this allegation. No correction is required by the Respondent.
All errors in original.
During the period of the Written Directive, Respondent requested an extension of the deadline within which to perform corrective work because Respondent was waiting for materials that had been ordered. Investigator Carter extended the deadline in the Written Directive to June 20, 2023. Also during the period of the Written Directive, Respondent contacted Investigator Carter to inquire as to how to perform repair work to the patio. Investigator Carter advised Respondent that the Registrar does not instruct contractors how to perform required corrective work.
Following the expiration of the extended deadline in the Written Directive, Investigator Carter contacted Complainant who requested a Compliance Inspection.
On July 13, 2023, Investigator Carter conducted a Compliance Inspection. Investigator Carter’s Compliance Jobsite Inspection Notes set forth the following:
Jobsite General Notes: . . . Both Complainant and Respondent were present for the inspection. Respondent advised that items that were not completed were not done because they were intimidated by Complainant. Respondent never reached out to the investigator to advise they had not completed these items due to being intimidated
Complaint Item: 9 - mechanical paint on sliders /windows
Investigator’s Observation: Respondent failed to address the scratches on the window frames
Complaint Item: 12 - doors/ trims/ deadbolts
Investigator’s Observation: Respondent failed to correct. The garage service door dead bolt striker plate is not set properly and the door has trouble latching. Pantry door in kitchen reveals are not even. Front door reveals are not even. Garage fire door does not auto close
Complaint Item: 23 - cracked and chips all over new patio concrete
Investigator’s Observation: Respondent failed to correct. Chips are still visible in a lot of areas and some that were repair work is very sloppy
All errors in original.
Investigator Carter forwarded the Complaint to the Registrar’s Legal Department. 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 Carter testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite Inspection Notes. Investigator Carter testified that there were three items on the Written Directive that remain to be completed. Regarding the chips on the patio, Investigator Carter testified that the Registrar’s standards for such are on its website.
Stephen Lawton, a former senior investigator for the Registrar, testified that he was present for the initial Jobsite Inspection, and observed the workmanship deficiencies delineated in the Written Directive, and further testified that Respondent did not fully comply with the Written Directive.
Complainant testified that some of the final repairs were worse than the original work performed, and that the window dealer has indicted that the frames need to be replaced because there is no paint that would be sufficient for a repair.
Ms. Miller testified that she contacted Milgaard, the window manufacturer, directly, and was informed that the window frames can be touched up rather than replaced. Ms. Miller further testified that the issue is adhesive on the windows, she does not know how this issue came to be, and that they were cleaned. Ms. Miller asserted that the Registrar’s workmanship standards “have ambiguity” and that Respondent is “trying to take responsibility.”
Regarding the door trims and deadbolts, Ms. Miller testified that she agrees that the “garage door looks terrible.” Ms. Miller testified that Complainant provided the deadbolts and that Respondent installed what Complainant provided. Ms. Miller asserted that they function. Ms. Miller suggested that Respondent could install another lock, in addition to the existing one, however, Complainant would need two keys for entry. Ms. Miller attributed the issue with latching to weather causing expansion and contraction, and the fact that the house remained empty for a period of time prior to Complainant moving in, and consequently, the door was not used. Ms. Miller asserted that it is “not uncommon for doors to have challenges” and to need adjustments.
Regarding the patio, Ms. Miller testified the chips are “minor” and the photographs “make them look worse.” Ms. Miller testified that Respondent did its best to blend the patching, however, she acknowledged that the patching actually made the condition worse. Ms. Miller asserted that Respondent was in a “lose-lose situation” and that Respondent “did not know what to do” because the standards are “gray and ambiguous.” Ms. Miller testified that Respondent is prepared to remove and replace the patio.
Administrative notice is taken of Respondent’s prior License record on October 10, 2023. Such prior License record reflects that Respondent’s License Number 322613 was first issued on November 14, 2018, 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.
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.”
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 the corrective work following the Written Directive being issued and acknowledged some of the remaining deficiencies. Respondent failed to establish, as an affirmative defense, valid justification for Respondent’s failure to fully comply with the Written Directive. 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 Number 322613 for a period of three (3) days.
It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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, October 13, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
James Carter
[email redacted]
Magnolia Home Builder, PLLC
[email redacted]
Renee M. Beaton
[email redacted]
By: OAH Staff