ALJDEC - Licensing
2023A-04088-CHC-ROC · Registrar of Contractors · 2024-01-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Donald Stephen Coburn
COMPLAINANT,
v.
Lifetime Homes Inc
License No. ROC 317017,
RESPONDENT.
No. 2023A-04088-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 18, 2023
APPEARANCES: Complainant Donald Stephen Coburn represented himself. Jeff Beal represented Respondent Lifetime Homes, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: No Exhibits Admitted.
_____________________________________________________________________
FINDINGS OF FACT
1. On or about November 11, 2021, Respondent Lifetime Homes, Inc. (Respondent) agreed to remodel the home of Complainant Donald Stephen Coburn (Complainant), for the amount of $97,582.69. Complainant paid Respondent a total of $114,713.96 for the project.
2. On or about November 11, 2021, Respondent started work.
3. On or about July 29, 2022, Respondent stopped work.
4. On or about April 14, 2023, the Arizona Registrar of Contractors (Registrar) received a complaint from Complainant alleging poor workmanship on the part of Respondent.
5. On or about May 18, 2023, Registrar Investigator Robert Di Alto conducted a job-site inspection.
6. On June 8, 2023, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:
Dear Respondent:
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.
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 reasons1, 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:
Complaint Item: 1-Live electrical wire laid in concrete cut out without conduit or stub up in kitchen.
Investigator’s Observation: I observed sheathed electrical cable in the toe space area of the peninsula base cabinets. The Complainant provided a Correction Notice, supporting the complaint item, and requiring that the complaint item be corrected. I queried the City of Phoenix PDD Online and was not able to locate any electrical permit being issued for the Complainant’s address. This condition does not meet industry standards and is an obstruction and tripping hazard. The Respondent stated that conductors were never connected to the main service panel. The Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 5-Steps of wood flooring edge piece not correctly adhered to floor.
Investigator’s Observation: I observed what appeared to be an outside corner/stair nose molding that was detached from the step down into a living area from the entry hall. It appears that a minimal amount of adhesive was applied to this molding piece prior to installation may have caused adhesion failure. Respondent shall correct by the appropriate means and as per the manufacturer’s recommendation and suggested adhesive.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 6-Bathrooms’ flooring not leveled beneath. Pieces moving, breaking, bending underneath weight.
Investigator’s Observation: I observed locations that were not in contact with slab substrate, mostly by the shower, between the shower curb and toilet. I was able to step on and off the locations that exhibited excessive vertical movement. The floor appeared to be somewhat flat on plane and more than likely low points were not filled prior to flooring installation. Respondent shall correct by the appropriate means at the locations where these conditions exist.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 8-Demo material still left behind in yard.
Investigator’s Observation: I observed miscellaneous construction materials and debris at various exterior locations of the residence. Item # 7 in the contract includes, Cleanup and Trash Removal: The contractor will keep the owner’s residence free from waste or rubbish resulting from the work. All waste, rubbish, tools, construction materials, and machinery will be removed promptly after completion of the work by the contractor. The Respondent shall correct by the appropriate means as per the contract.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 10-Two windows ordered incorrectly still left behind.
Investigator’s Observation: I observed two windows that were apparently ordered incorrectly and were not installed. The Respondent stated that the Complainant wanted to keep the windows to sell. The Complainant stated that he wanted them removed and Respondent stated he had no issue removing them from the jobsite. The Respondent shall complete the removal as per contract and by the appropriate means.
Governing Rule Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 11-Tools and building materials left behind.
Investigator’s Observation: I observed miscellaneous construction materials and debris at tools at various exterior locations of the residence. Item # 7 in the contract provides for, Cleanup and Trash Removal: The contractor will keep the owner’s residence free from waste or rubbish resulting from the work. All waste, rubbish, tools, construction
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 12-New smoke detectors not correctly installed per code. Wirelessly connected in cases where direct wired is not available. This was not done.
Investigator’s Observation: At the time of this inspection the complainant did not demonstrate the allegation and the Respondent stated that the smoke detectors were interconnected. However The Complainant provided a Correction Notice, supporting the complaint item, and requiring that the complaint item be corrected. I queried the City of Phoenix PDD Online and was not able to locate any electrical permit being issued for the Complainant’s address. The Respondent shall verify smoke detector requirements with the City of Phoenix and if required, the Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 14-No electrical permit pulled for new outlets installed.
Investigator’s Observation: While the removal and replacement of an electrical device/outlet or the addition of an outlet may not require a permit in some jurisdictions, this may not be the case in others. The Complainant provided a Correction Notice, supporting the complaint item, and requiring that the complaint item be corrected. I queried the City of Phoenix PDD Online and was not able to locate any electrical permit being issued for the Complainants address. The Respondent shall verify the requirements with the City of Phoenix and if required, the Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 15-Kitchen outlets to be GFI and AFCI connected.
Investigator’s Observation: At the time of this inspection, the Complainant did not demonstrate the complaint item. The Complainant provided a Correction Notice, supporting the complaint item, and requiring that the complaint item be corrected. I queried the City of Phoenix PDD Online and was not able to locate any electrical permit being issued for the Complainants address. The Respondent shall verify requirements with the City of Phoenix and if required, the Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
7. On August 28, 2023, Investigator Di Alto conducted a compliance job-site inspection. Investigator Di Alto found that Respondent had corrected all of the complaint items from the Directive, with the exception of Complaint Items 1 and 6. Investigator Di Alto’s job-site inspection notes provided, in relevant part, as follows:
Compliance Findings:
Complaint Item: 1-Live electrical wire laid in concrete cut out without conduit or stub up in kitchen.
Investigator’s Observation: At the time of the Compliance jobsite inspection it appeared as if the electrical wire had been removed. However the flooring at that location was not interlocked into the adjacent flooring and a visible edge was lifted. I also observed an area where the Respondent stated they had saw cut and patched the concrete that appeared to be cracking and mirroring the channel that had been cut. It was also discovered and the Respondent admitted that the peninsula base cabinets were installed directly on the flooring. The repair and the cabinets installed on top of the floating floor does not meet professional industry standards and is not per the manufacturer’s installation directions. I suggested that the parties work together to resolve and the Complainant was willing to allow the Respondent to continue to address the issue, and the Respondent decided that he could not do anything else to resolve the complaint item.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 6-Bathrooms’ flooring not leveled beneath. Pieces moving, breaking, bending underneath weight.
Investigator’s Observation: The initial complaint item was located between the toilet and the shower curb, and it appears that the deflection was addressed and corrected in that specific area. The area at the front of the vanity was now exhibiting the same deflection when walked on, similar to the area that was corrected prior to this compliance jobsite inspection. The flooring installation does not meet professional industry standards. I suggested that the parties work together to resolve and the Complainant was willing to allow the Respondent to continue to address the issue, and the Respondent decided that he could not do anything else to resolve the complaint item.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
8. On October 17, 2023, the Registrar issued a Citation alleging that Respondent violated may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3); namely A.A.C. R4-9-108(a): A.R.S. § 32-1154(A)(22).
9. Respondent filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on December 18, 2023.
12. At hearing, Complainant testified on behalf of himself. Jeff Beal testified on behalf of Respondent.
13. Investigator Di Alto testified consistently with his job-site and compliance inspection notes.
13. Complainant explained that Respondent performed poor work with regard to the home remodeling project.
14. Mr. Beal asserted the remaining items were minor. Mr. Beal stated that the laminate flooring could not be improved because it was underneath the cabinetry. Regarding the bathroom flooring, Mr. Beal believed that the deflection was within tolerances.
15. Administrative notice is taken of Respondent’s prior License record on January 8, 2024. Such prior License record reflects that Respondent’s License No. 264084 was first issued on December 20, 2017, and is active. Such prior License record also reflects that there were no other open complaints filed against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See ARIZ. ADMIN. CODE § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 317017 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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. sections 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 8, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Donald Stephen Coburn
[email redacted]
Lifetime Homes Inc
[email redacted]
Robert Di Alto
[email redacted]
By: OAH Staff