ALJDEC - Licensing
2023A-05970-CHC-ROC · Registrar of Contractors · 2023-12-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marianne Naples,
COMPLAINANT
v.
Bannack Construction LLC
License No. ROC 200811,
RESPONDENT
No. 2023A-05970-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 5, 2023
APPEARANCES: Complainant Marianne Naples appeared via Google Meet on her own behalf. Timothy Troy appeared via Google Meet on behalf of Respondent Bannack Construction LLC. Registrar of Contractors Investigator David Fagerburg appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: All of Complainant’s exhibits were admitted.
_____________________________________________________________________
FINDINGS OF FACT
Bannack Construction LLC (Respondent) is the holder of License No. 200811 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 8, 2022, Marianne Naples (Complainant) purchased a home built by Respondent and the close of escrow was February 8, 2022.
On or about May 26, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on July 7, 2023.
Investigator Fagerburg then issued a written directive on or about July 21, 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 Friday August 11, 2023.
. . .
Investigator Notes:
1: The respondent resides out of state during the summer months and was not present at the jobsite investigation.
2: The complainant acknowledged the move in date as being September 21, 2022.
3: Complaint Item 25 has been separated into 2 individual complaint items and will be addressed as Complaint Item 25a and 25b for clarity.
4: Addendum Complaint Item 12 has been separated into 4 individual complaint items and will be addressed as Addendum Complaint Item 12a, 12b, 12c and 12d for clarity.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: The front hallway has 3 different baseboards and 2 of the corners are smashed;
Investigator’s Observation: Verified. The respondent shall correct the baseboard at the front entry hallway with 2 different baseboard profiles, widths and smashed corners by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 2: The front hallway has a seam on the ceiling that needs to be sanded and painted;
Investigator’s Observation: Verified. The respondent shall correct the visible drywall seam line at the front hallway by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 3: The tile throughout the house has been addressed several times but they still are uneven and I trip on it;
Investigator’s Observation: Verified. The respondent shall correct the floor tile installed throughout the interior of the home with lippage that exceeds 1/32” by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 8: Light switch covers are crooked and sunk in the walls;
Investigator’s Observation: Verified. The respondent shall correct the light switch plate and J-box that is crooked and sunk into the wall at the master bathroom by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 9: Master medicine cabinets need to be replaced 1 has smashed corner they both have screws sticking out and both are bowed out. They also need paint around them;
Investigator’s Observation: Verified. The respondent shall correct the medicine cabinet with a bent corner and screws that are not seated against the interior frame at the master bathroom by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 10: Nails need to be filled under the cabinets;
Investigator’s Observation: Verified. The respondent shall correct the nail holes and toe kick joints that are not filled throughout by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 14: The guest bathroom mirror and light are not centered above each other and the mirror has scratches on it;
Investigator’s Observation: Verified. The respondent shall correct the guest bathroom mirror and light that are not centered by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 19: The unfinished nail holes under cabinets need to be filled in and around fridge cubby also the kickboard under cabinets has a gauge in it and the end of the board needs to be trimmed and painted;
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 21: The microwave hits the cabinet when you open it;
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 22: Rounded corner near fridge baseboard needs to be replaced and aligned;
Investigator’s Observation: Verified. The respondent shall correct the mismatched rounded baseboard corners that do not match the baseboard profile throughout the interior of the home by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 25b: He replaced something beautifully structured like all the other buildings with a 2 x 6 board not even all painted. We get water pouring down the sides of house and there is space now for animals to get in. It isn't even holding up the roof. Water is getting into the garage now which could turn into mold.
Investigator’s Observation: Verified. The respondent shall correct the fascia with inadequate paint coverage and secure the opening observed by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 35: The floor up the walls on patio has cracks and patio needs to be painted:
Investigator’s Observation: Verified. Per ROC Workmanship Standards, Cracks in “cast in place” concrete stems; cracks wider than 1/8" should be properly repaired with appropriate material. The respondent shall correct the crack at the back patio concrete stem wall under the slider by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Addendum Compliant Item 1: All the outside brickwork has sloppy mortar. Some of the bricks are cracked and missing mortar.
Investigator’s Observation: Verified. The respondent shall correct the brickwork with mortar splatters throughout the exterior by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Addendum Compliant Item 2: There are white drippings on the back southeast pilar.
Investigator’s Observation: Verified. The respondent shall correct the southeast pillar with white drippings by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Addendum Compliant Item 3: And a lot of mortar splashes around garage overhead door.
Investigator’s Observation: Verified. The respondent shall correct the mortar splashes around garage overhead door by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Addendum Compliant Item 12a: The floor tile throughout the house has different spacing and grout depth between tiles which is very noticeable. I’ve looked at other units and their tile looks great. I keep tripping on the corners of the floor tiles because they are not flat.
Investigator’s Observation: Verified. The respondent shall correct the floor tile throughout the interior of the home with grout lines that are not uniform and grout that is loose and cracking by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Addendum Compliant Item 12c: We had tile people out a couple of times but every time they tried to fix tiles throughout the house they would break other tiles around the tiles they we’re trying to fix.
Investigator’s Observation: Verified. The respondent shall correct the chipped floor tiles throughout the interior of the home by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliant Item 4: There is a gauge on the door to the air unit in the hallway;
Investigator’s Observation: Not Verified. I am unable to verify whether or not the gauge occurred after the complainant took possession of the home or if the gauge is the result of the respondent’s poor workmanship.
Governing Rule: No Action
Compliant Item 5: Master bathroom shower head was staying everywhere from day one they sent someone 5 months later to replace but the replaced with a used one and it drips. I was told that they would come back but never did;
Investigator’s Observation: Not Verified. I am unable to verify whether or not the shower head installed is used.
Governing Rule: No Action
Compliant Item 6: Door in master to the outside needs screw holes to be filled;
Investigator’s Observation: Not Verified. The complainant acknowledged the screw holes has been filled by the complainant.
Governing Rule: ARS §32-1155 (D) (2) (Modification)
Compliant Item 7: Master bathroom sliding door is loud and rough when opening and closing;
Investigator’s Observation: Not Verified. I am able to verify the pocket door installed is square, plumb, with the proper guides and hangs evenly in the frame.
Governing Rule: No Action
Compliant Item 11: There's a big yellow goop on granite in master bathroom;
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that the yellow goop or discoloration on the master bathroom granite countertop surface was reported to the respondent at the final walk thru or within 10 days of taking possession of the home.
Governing Rule: No Action
Compliant Item 12: Master bedroom glass block windows are extremely scratched and sloppy paint and grout everywhere;
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that any scratches on the glass block windows were reported to the respondent at the final walk thru or within 10 days of taking possession of the home.
Governing Rule: No Action
Compliant Item 13: Guest bathroom toilet needs to be replaced. It has scratches in the bowl and a dimple which is dark;
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that the small dark dimple in the guest bathroom toilet bowl was reported to the respondent at the final walk thru or within 10 days of taking possession of the home.
Governing Rule: No Action
Compliant Item 15: Nails under cabinets need to be finished;
Investigator’s Observation: This complaint item has been previously addressed in complaint item 10.
Governing Rule: No Action
Compliant Item 16: Kitchen sink needs to be replaced. There are numerous tool scratches I have pictures of tools and such all over my granite and sink unprotected. It was mentioned during walk through and numerous conversations. I was finally told on March 20 that he was not going to replace it due to cost because it would cost a lot for the granite and backsplash. I told him to give me$10,000 and I would handle the replacement of the sink and granite and backsplash;
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that the scratches in the kitchen sink were reported to the respondent at the final walk thru or within 10 days of the complainant taking possession of the home.
Governing Rule: No Action
Compliant Item 17: The granite in the kitchen needs to be buffed out due to all the construction tools that scratched it all up. I have pictures and witnesses before closing;
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that the scratches on the kitchen granite countertop surface were reported to the respondent at the final walk thru or within 10 days of taking possession of the home.
Governing Rule: No Action
Compliant Item 18: The cabinets need to be replaced or fixed because when they screwed them in they screwed to far and cracked the wood inside;
Investigator’s Observation: Not Verified. The cabinet installation is sound, the repair is considered acceptable and does not affect the structural integrity or operation of the cabinet.
Governing Rule: No Action
Compliant Item 20: The trash cabinet doesn't close properly and do not have access to the 2nd garbage can.;
Investigator’s Observation: Not Verified. I am able to verify the drawer fully opens and both trash cans can be accessed and removed as designed.
Governing Rule: No Action
Compliant Item 23: We are supposed to get a new sliding glass door and screen in living room and new window in master bedroom they came out to measure on March 20th and was told it would be about 5-6 weeks. We still have not heard anything about it nor do I know the contractor name and phone number;
Investigator’s Observation: This complaint items will be addressed in Addendum Complaint Item 19.
Governing Rule: No Action
Compliant Item 24: We had the door going to garage because frame was cracked. They replaced 6 months later but the gray paint did not match around the replaced door the sheen is noticeably different they also messes up the grout by the door. ;
Investigator’s Observation: Not Verified. I am unable to verify that the grey paint sheen is noticeably different. The crack at the door threshold to floor tile grout joint does not exceed 1/16”.
Governing Rule: No Action
Compliant Item 25a: We were not told about the overhang that was cut off on both sides of our house.
Investigator’s Observation: Not Verified. In reviewing 2015 IRC code R 302.1 and Table R 302.1(1) Fire Resistant Construction it appears the complainant’s previous roof eaves violated this section and were required to be removed by the Town of Cave Creek Planning and Zoning.
Governing Rule: No Action
Compliant Item 26: There are bricks missing on the north side of our building.
Investigator’s Observation: Not Verified. The complainant acknowledged this complaint item has been corrected by the respondent.
Governing Rule: No Action
Compliant Item 27: There are also elbows missing outside for pipes all which was noted on our inspection report. ;
Investigator’s Observation: Not Verified. The complainant acknowledged that the local building authority passed final inspection and issued a C of O and the pipes with elbows missing observed at the front entry are for the neighbor’s hot water heater TPR and condensate drain lines.
Governing Rule: No Action
Compliant Item 28: Anchors are exposed around house.
Investigator’s Observation: Not Verified. I am able to verify the anchors observed are sealed with paint and the local building authority passed final inspection and issued a C of O.
Governing Rule: No Action
Compliant Item 29: The garage needs to be sealed garage door there are paint stains on both sides in and out of the overhead garage door and the bottom;
Investigator’s Observation: Not Verified. The complainant acknowledged that this complaint item was corrected by the complainant.
Governing Rule: ARS §32-1155 (D) (2) (Modification)
Compliant Item 30: There is paint on all the windows on the outside.
Investigator’s Observation: Not Verified. I am able to verify there is no evidence of paint on all the exterior window observed.
Governing Rule: No Action
Compliant Item 31: Our inspector said he couldn't even inspect the windows because they were too dirty. ;
Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.
Governing Rule: No Action
Compliant Item 32: Tile contractor used the patio to cut their tile and put numerous cuts in the concrete.
Investigator’s Observation: Not Verified. During this jobsite investigation I did not observe any cuts in the concrete patio surface.
Governing Rule: No Action
Compliant Item 33: We had the patio epoxy but now it's cracking.
Investigator’s Observation: Not Verified. At the back patio the complainant showed me small cracks in the control joints that do not exceed 3/8”.
Governing Rule: No Action
Compliant Item 34: Again we have no contact information for any of the contractors that worked on our house. ;
Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.
Governing Rule: No Action
Compliant Item 36: I don't know if it's because of my disability that I was taken advantage of but I can't get any answers about anything not even the name of the color paint on the walls etc
Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.
Governing Rule: No Action
Addendum Compliant Item 4: The roof on patio has seam cracks which is separating from the walls.
Investigator’s Observation: Not Verified. Per the ROC Workmanship Standards Cracks of more than 1/16” at joints with other dissimilar materials that exceed 1/16” are unacceptable. The crack observed does not exceed 1/16”.
Governing Rule: No Action
Addendum Compliant Item 5: The wood is curling and stucco has cracked across the outside of overhead garage door.
Investigator’s Observation: Not Verified. The stucco crack observed does not exceed 1/16”
Governing Rule: No Action
Addendum Compliant Item 6: Wood near front door have several issues it needs to be painted and there are 2 large vertical cracks on the wood pilar.
Investigator’s Observation: Not Verified. The crack observed does not go all the through the timber post and there is no evidence that the structural integrity of the solid wood pillar is compromised.
Governing Rule: No Action
Addendum Compliant Item 7: The wood on top by roof has little to no paint where they cut off the architectural features on both sides of the building. We were not informed of this. Every other buildings has the architectural features and our building also had it when we purchased the home and they cut off the features which also left us with no vents that were included in the feature. The 2x6 piece of wood the used to replace the feature left a gap along the roof line. There is still painters tape near roof. Since they took off the architectural feature, this is also allowing water in our garage.
Investigator’s Observation: This complaint item has been previously addressed in Complaint Items 25a and 25b.
Governing Rule: No Action
Addendum Compliant Item 8: On the south side of house there is a crack on a supporting beam and also needs to be painted.
Investigator’s Observation: Not Verified. I did not observe a crack on the supporting beam with missing paint.
Governing Rule: No Action
Addendum Compliant Item 9: The cubby on south side of house top near wood is cracked.
Investigator’s Observation: Not Verified. I did not observe cracked wood on the south side of the house top at the cubby.
Governing Rule: No Action
Addendum Compliant Item 10: Wood on northwest corner has no paint on it.
Investigator’s Observation: This addendum complaint item has been previously addressed in complaint item 25b.
Governing Rule: No Action
Addendum Compliant Item 11: There are issues with all the wood features around the outside of the house which are too much to list all.
Investigator’s Observation: Not Verified. This is a statement made by the complainant that does not imply poor workmanship.
Governing Rule: No Action
Addendum Compliant Item 12b: I keep tripping on the corners of the floor tiles because they are not flat.
Investigator’s Observation: This complaint item has been previously addressed in complaint item 3.
Governing Rule: No Action
Addendum Compliant Item 12d: We have hollow tiles that clank which we’re supposed to be replaced but workers and they said they would fix but never showed up. We contacted the tile store and they said they are floating tiles and they feel they don’t need to replace until they break.
Investigator’s Observation: Not Verified. I am able to verify there is not more than 20% of the total floor tile installed that has a hollow sound and the tiles observed are solidly bonded to the substrate.
Governing Rule: No Action
Addendum Compliant Item 13: There is a large crack in wall outside the sliding glass door.
Investigator’s Observation: This complaint item has been previously addressed in complaint item 35.
Governing Rule: No Action
Addendum Compliant Item 14: The foundation under sliding glass door is also cracked.
Investigator’s Observation: This complaint item has been previously addressed in complaint item 35.
Governing Rule: No Action
Addendum Compliant Item 15: On the southeast side of building by patio has a very large foundation hole.
Investigator’s Observation: Not Verified. At this jobsite investigation the complainant did not show me the large foundation hole.
Governing Rule: No Action
Addendum Compliant Item 16: There is no caulking on lower overhead garage door which allows water into the garage.
Investigator’s Observation: Not Verified. At this jobsite investigation the complainant acknowledged that this complaint item was corrected by the complainant.
Governing Rule: ARS §32-1155 (D) (2) (Modification)
Addendum Compliant Item 17: There are numerous cracks on garage floor and up the south sides of cement going up the walls. Which is allowing water into the garage.
Investigator’s Observation: Not Verified. I observed and am able to verify the small crack in the garage slab does not exceed 3/32”.
Governing Rule: No Action
Addendum Compliant Item 18: Vents on the upper part of outside wall are closed/open which allows insects to get in.
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate as to whether or not the wire mesh observed inside the vent was installed by the respondent or another person.
Governing Rule: No Action
Addendum Compliant Item 19: Below are additional items for the addendum Back in September of 2022 I pointed out to Tim the issues with our sliding doors and bedroom window. We kept waiting and bringing up the issue along with everything else. He knew time was of the Essence with the repairs. Finally on March 20th Mark Kilmer from Jeld-Wen came to my house to measure for a new sliding glass door and new master bedroom window. He informed me that new ones will be installed in about 6 weeks. I’ve been waiting and decided to call a couple of weeks ago and they gave me a case number #03608729 and that they would get back to me. I didn’t hear from them so I decided to call 6/26/23. After being on the phone with them all morning I was informed that they tried to call Tim Troy on March 24th.
They did not hear back from Tim, so on April 22nd they closed the case. (They actually had 7 windows from different units that needed replacement and since they didn’t hear back on those - they were also closed. They were supposed to be for units 102, 106, 204 & 205)
I talked to Tammy the supervisor on 6/26/23 and she gave me a new case number #3866129. She said after several attempts to reach Tim Troy to avail. That Tim Troy negligently let the warranty expire on the bedroom window but in good faith she will send us a new window and frame for the master bedroom. Tammy said the installation would be the responsibility of the contractor. This will have to also include to have it installed which will also require to have someone to repair drywall and paint the inside around the window plus have someone fix the outside stucco and paint the outside
stucco. Etc.
She will also send us a new sliding glass door that leads out to our patio and my understanding is that they will install the slider, but once again we will have to pay for painting inside around the slider and painting stucco on the outside.
Investigator’s Observation: Verified. After this jobsite investigation the respondent provided an email from Jeld-Wen, the manufacturer of the windows and sliding glass doors and an email from the HOA for the complex informing residents, including the complainant that the window problems will be taken care of on August 2, 2023 under the manufacturer’s warranty.
Governing Rule: No Action
(All errors contained in the original).
On July 31, 2023 also issued an Addendum Written Directive which provided in pertinent part:
After additional photo documentation was provided by the complainant it has been determined that Complaint Item 4 was documented prior to the close of escrow date and requires correction. All other items listed on the Written Directive issued July 21, 2023 remain standing.
On August 29, 2023, Investigator Fagerburg conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Fagerburg found:
. . .
Investigator Note:
1: The respondent resides out of state during the summer months and was not present at the compliance jobsite inspection.
2: The respondent had 2 representatives present for this compliance jobsite inspection.
3: After additional photo documentation was provided by the complainant it has been determined that Complaint Item 4 was documented prior to the close of escrow date and requires correction. All other items listed on the Written Directive issued July 21, 2023 remain standing.
Compliance Findings:
Complaint Item 1: The front hallway has 3 different baseboards and 2 of the corners are smashed;
Investigator’s Observation: The baseboard with 2 different profiles has been corrected.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 2: The front hallway has a seam on the ceiling that needs to be sanded and painted;
Investigator’s Observation: The visible drywall seam at the front hallway ceiling has been corrected.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 3: The tile throughout the house has been addressed several times but they still are uneven and I trip on it;
Investigator’s Observation: The respondent’s subcontractor replaced some of the tiles with lippage. However, there are still at least 3 tiles with lippage that exceeds 1/32”.
Governing Rule: The respondent is not in compliance with the directive.
Compliant Item 4: There is a gauge on the door to the air unit in the hallway;
Investigator’s Observation: The respondent’s subcontractor filled and painted the gouge on the door to the HVAC air handler.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 8: Light switch covers are crooked and sunk in the walls;
Investigator’s Observation: The respondent’s subcontractor corrected the light switch that was crooked and sunk into the wall.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 9: Master medicine cabinets need to be replaced 1 has smashed corner they both have screws sticking out and both are bowed out. They also need paint around them;
Investigator’s Observation: The respondent’s subcontractor replaced the 2 medicine cabinets in the master bathroom and the screws are securely fastened.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 10: Nails need to be filled under the cabinets;
Investigator’s Observation: The respondent’s subcontractor filled the nail holes under the cabinets.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 14: The guest bathroom mirror and light are not centered above each other and the mirror has scratches on it;
Investigator’s Observation: The respondent’s subcontractor replaced the mirror that was scratched and centered the fixtures.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 19: The unfinished nail holes under cabinets need to be filled in and around fridge cubby also the kickboard under cabinets has a gauge in it and the end of the board needs to be trimmed and painted;
Investigator’s Observation: The respondent’s subcontractor filled the nail holes under the cabinets in and around the refrigerator, filled and painted the gouge on the kickboard.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 21: The microwave hits the cabinet when you open it;
Investigator’s Observation: The respondent’s subcontractor corrected the cabinet door that hit the microwave.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 22: Rounded corner near fridge baseboard needs to be replaced and aligned;
Investigator’s Observation: The respondent’s subcontractor replaced the rounded corners at all locations.
Governing Rule: The respondent is in compliance with the directive.
Compliant Item 25b: He replaced something beautifully structured like all the other buildings with a 2 x 6 board not even all painted. We get water pouring down the sides of house and there is space now for animals to get in. It isn't even holding up the roof. Water is getting into the garage now which could turn into mold. ;
Investigator’s Observation: The fascia on the south side of the garage has inadequate paint coverage and the hole has not been secured.
Governing Rule: The respondent is not in compliance with the directive.
Compliant Item 35: The floor up the walls on patio has cracks and patio needs to be painted:
Investigator’s Observation: After further review it has been determined that this complaint item was not substantiated. During a phone conversation the respondent explained that this is a monolithic concrete slab with a control joint where the crack was observed on the patio.
Governing Rule: The respondent is in compliance with the directive.
Addendum Compliant Item 1: All the outside brickwork has sloppy mortar. Some of the bricks are cracked and missing mortar.
Investigator’s Observation: The respondent’s subcontractor made an attempt to correct the brickwork with mortar splatters. However, mortar splatters still exist.
Governing Rule: The respondent is not in compliance with the directive.
Addendum Compliant Item 2: There are white drippings on the back southeast pilar.
Investigator’s Observation: The white drippings on the back southeast pillar have been removed.
Governing Rule: The respondent is in compliance with the directive.
Addendum Compliant Item 3: And a lot of mortar splashes around garage overhead door.
Investigator’s Observation: The respondent corrected the mortar splatter around the garage overhead door.
Governing Rule: The respondent is in compliance with the directive.
Addendum Compliant Item 12a: The floor tile throughout the house has different spacing and grout depth between tiles which is very noticeable. I’ve looked at other units and their tile looks great.
I keep tripping on the corners of the floor tiles because they are not flat.
Investigator’s Observation: At this compliance jobsite inspection the complainant stated that the wrong color grout was applied. However, neither party can provide any documentation as to what the original grout color was. The grout line spacing has been corrected at the areas previously observed.
The complainant stated that the grout lines were not prepared adequately prior to the respondent’s subcontractor applying a new layer of grout throughout the interior of the home with the exception of under the master bedroom bed as the complainant did not want the bed moved. The complainant pointed out that the grout is soft and has not cured properly. While wiping a grout line, grout dust did transferred to my finger. It appears the grout has not cured properly.
Governing Rule: The respondent is not in compliance with the directive.
Addendum Compliant Item 12c: We had tile people out a couple of times but every time they tried to fix tiles throughout the house they would break other tiles around the tiles they we’re trying to fix.
Investigator’s Observation: The respondent’s subcontractor replaced the tiles with chips.
Governing Rule: The respondent is in compliance with the directive.
(All errors contained in the original).
On September 6, 2023, 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).
On or about September 20, 2023, Respondent timely submitted Answer to the Registrar.
On or about October 30, 2023, an Amended Notice of Hearing was issued setting a hearing on December 5, 2023 at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Fagerburg testified as to the Registrar’s involvement and the above timeline.
Investigator Fagerburg testified that there were still tiles with lippage that exceeded 1/32 of an inch, the fascia on the south side of the garage had not been properly repaired, there were mortar splashes or missing mortar in areas and the grout was not cured properly.
Complainant testified that due to the repairs, now there were areas of mismatched grout, and that the grout comes off when vacuuming. Further, Complainant testified that there were unfinished nails in the bathroom cabinets. Complainant also testified that in the kitchen, where the microwave door was slamming into the cabinets, the dents caused by the same were not repaired.
Timothy Troy testified on behalf of Respondent. He testified that he moved to Montana in March 2023, and was not present at either jobsite inspection and had not otherwise returned to the jobsite.
Mr. Troy testified further that a great majority of the complaints were either not verified or had been repaired during the corrective work period. However, Mr. Troy acknowledged the four remaining issues, and had no reason for why they were not properly repaired.
Administrative notice was taken of Respondent’s prior License record on December 19, 2023. Such prior License record reflected that Respondent’s License No. 200811 was first issued on October 11, 2004, and reflected that there was one open complaint, namely the present complaint.
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 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).
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. As mentioned above, there were 18 complaint items which were found to be completed in an unworkmanlike manner. 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 Respondent failed to fully complete the corrective work following the Directive being issued. While a vast majority of items were repaired, there were still four that were not. Further, it is troublesome that Mr. Troy did not come to the jobsite once the repairs were made, to ensure that all items were properly repaired. 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. 200811 for a period of five 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)(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, December 19, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Bannack Construction LLC
[email redacted]
Marianne Naples
[email redacted]
By: OAH Staff