ALJDEC - Licensing
2023A-06432-CHC-ROC · Registrar of Contractors · 2024-01-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Cody Wayne Smith,
COMPLAINANT
v.
Inland Prestige Properties LLC
DBA: Moran AZ Homes
License No. ROC 288392,
RESPONDENT
No. 2023A-06432-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 22, 2023
APPEARANCES: Cody Smith appeared on his own behalf. Mark Saric, counsel for Respondent, appeared on its behalf.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1, 6, 7, 10
_____________________________________________________________________
FINDINGS OF FACT
Inland Prestige Properties LLC (Respondent) is the holder of License No. 288392 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 17, 2022, Cody Smith (Complainant) entered into a contract with Respondent for a new home construction.
On or about June 5, 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 Cliff Corlett. After a jobsite inspection, Investigator Corlett 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 or before August 1, 2023.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - 1. Roof has 3 different leaks, fixed twice but has not fixed issue.
Investigator’s Observation: Complaint states Respondent has made attempts to repair leaks. As of onsite inspection there is insufficient evidence to determine if leak(s) still exist or have been corrected. There is interior drywall ceiling damage that Respondent should properly correct. RESPONDENT SHOULD CORRECT CEILING LEAK DAMAGE BY APPROPEIATE METHODS MATCHING THE SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - 3. Sliding doors are not square and let in air and dirt. Contacted the manufacturer and they confirmed the framing was not done right and needs to be fixed before they will warranty the sliders.
Investigator’s Observation: Manufacturer inspection report indicates that the door installation is out of tolerance. Manufacturer requires the door to be reinstalled to manufacturer’s tolerances.
RESPONDENT SHOULD CORRECT DOOR INSTALLATION BY APPROPRIATE METHODS.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - 7. Leaks under every sink in the house that caused damage, says he can’t fix the damage.
Investigator’s Observation: Leaks at master bath drains confirmed. cabinets have water damage.
RESPONDENT SHOULD DETERMMINE CAUSE AND PROPERLY CORRECT BOTH.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Cracks around the house. Drywall.
Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states that a contractor should correct hairline and seam cracks and nail pops that occur during the first year of occupancy, one time.
RESPONDENT SHOULD PROPERLY CORRECT THE HAIRLINE, SEAM CRACKS AND NAIL POPS BY APPROPRIATE METHODS MATCHING THE SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
All errors contained in original.
Following the issuance of the written directive, Respondent attempted to make certain repairs.
Specifically, with regard to Item 1, Respondent did make repairs to the leak damage, but the repairs required some additional work and attention in order to make the repairs “acceptable.” Specifically, the repairs needed work in order to improve the match to the surrounding areas. Additionally, one of the cracks that was repaired in the ceiling still showed a bulge under the repair.
With regard to Item 3, the sliding glass door was replaced, but when replacing the door, Respondent caused collateral damage to the stucco. The stucco was repaired; however, it was repaired approximately two weeks after the door was installed, and after the compliance deadline had passed. Additionally, a trim piece was still missing from after the install was completed and was still missing as of the date of the hearing. The hardware was also missing. Although that was eventually installed and corrected, it was done after the compliance deadline. Lastly, when Respondent removed the stucco tape, it also removed the paint in that area and that had yet to be corrected.
With regard to Item 7, the leaks in the sinks were fixed; however, the resultant damage to the cabinets had not been remedied.
Finally, with regard to the repairs of the cracks around the home as alleged in Item 8, repairs were made, but these repairs also required some additional work and touch-ups to make the repairs acceptable. Some drywall repair spots were also completely missed when Respondent repainted the areas of repair.
After the deadline in the directive expired, on August 23, 2023, Complainant informed Investigator Corlett that the trim piece on the left side of the slider needed to be installed and that the drywall repair in the hallway needed additional work.
On September 4, 2023, Complainant sent Investigator Corlett an email inquiring as to what the next steps were. The email read, in relevant part:
I have not heard from Jose at all . The slider needs finished . The pain outside from slider install . . . . the drywall patch needs to be don’t better and they missed a few spots of pain on ceiling . . . .
All errors in original.
At some point between September 4, 2023, and September 15, 2023, Complainant filed an addendum to his Complaint. This addendum was eventually withdrawn by September 22, 2023, and a Compliance Report was issued off the original written directive.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A), and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Corlett testified consistent with his written directive and compliance inspection report. He also testified that the 23 days he gave between the issuance of the written directive and the compliance deadline was a reasonable amount of time. Lastly, he testified that if Respondent had requested an extension, he would have given it an extension.
Complainant testified consistent with the observations contained in the compliance inspection report. Complainant testified that the repairs were made one day before the compliance deadline was set to expire and Respondent did not sand or paint the repair until after the deadline. He also testified that he did not file the complaint until one year after these issues occurred and believed Respondent had plenty of time to fix these issues.
Jose Moran, managing member, testified on behalf of Respondent. Mr. Moran testified that he upgraded the slider door at no charge to Complainant. He also testified that the missing trim piece on the slider was not on the written directive. He further testified that the damage to the cabinets from the water leaks was minor and that it was difficult to get a craftsman out in a timely manner. Lastly, he testified that he was and has always been willing to fix the remaining issues.
Administrative notice is taken of Respondent’s prior License record on December 22, 2023. Such prior License record reflects that Respondent’s License No. 288392 was first issued on November 14, 2013 and is currently active. Such prior License record also reflects that there was this open case and no prior cases 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.”
It is not enough to make a “repair” if either that repair is incomplete or causes additional damage. In the case of the latter, the additional damage then also needs to be repaired and would relate back to the original issue on the written directive. A new written directive is not required for resultant damage of a repair. It is to be considered one event, all relating back to the original written directive item.
In this case, the evidence established that, with regard to Items 1 and 3, the repairs were incomplete. The testimony of Investigator Corlett and Complainant both established that the repair work that was done needed additional work in order to have been considered appropriate or “acceptable.”
With regard to Item 3, the evidence established that the trim piece was still missing from the replacement of the slider. This would be considered collateral damage from replacing the slider, relating back to the original written directive, and would have been required to be fixed. Additionally, the area where the stucco paint was removed still needed to be repainted.
With regard to Item 7, the evidence established that the water damage on the cabinets was never corrected.
Based on the foregoing, 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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence further established that, while Respondent did make attempts at completing corrective work following the directive being issued, it did not correct at least one item altogether, and did not fully complete the other items within a reasonable time. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 288392 for a period of 1 day.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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. § 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 10, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Mark G. Saric, Esq.
Resolvere Law PLLC
[email redacted]
Inland Prestige Properties LLC
DBA: Moran AZ Homes
[email redacted]
Cody Wayne Smith
[email redacted]
By: OAH Staff