ALJDEC - Licensing

2023A-06654-CHC-ROC · Registrar of Contractors · 2024-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marci Gottfredson,

COMPLAINANT

v.

T & M Creations LLC

License No. ROC 211169,

RESPONDENT

No. 2023A-06654-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 4, 2024

APPEARANCES: Complainant Marci Gottfredson appeared on her own behalf. Lawrence J, Felder, Esq. appeared via Google Meet on behalf of Respondent T & M Creations LLC. Investigator Albert Bernal appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 – 2 were admitted into evidence. Respondent’s Exhibit A was admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

T & M Creations LLC. (Respondent) is the holder of License No. 211169 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 1, 2021, Marci Gottfredson (Complainant) agreed to have Respondent build a new home in Casa Grande, Arizona. The contracted amount was $281,000.00.

On or about June 12, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Albert Bernal. The jobsite inspection was performed on July 13, 2023.

Investigator Bernal then issued a written directive on or about July 31, 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 August 25th, 2023.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item: 8 - The front door and porch lights were measured incorrectly so the stucco looks patched.

Investigator’s Observation: I noted a stucco patch by the porch light. I observed that the stucco texture was a close match, but it was not painted to match the surrounded areas.

Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 11 - There was trenching done from the house to the well for over 1 year which caused and is still causing disruption to the rest of the property.;

Investigator’s Observation: I was shown several areas from the house to the well pump location where trenching was done to installed the water line. Various areas along the trench settled creating a swale/ditch in the areas inspected.

Respondent shall identify these areas and correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 14 - There is plaster all over the windows and the porch that needs to be removed.

Investigator’s Observation: I was shown several windows in various rooms that had spray foam and/or plaster residue on the frames and glass.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 15 - The screens on the windows are ripped

Investigator’s Observation: I was shown several windows throughout the residence and I observed that the window screens were missing.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 18 - Drywall repaired at front entry door needs to be painted.

This complaint item was added at the JSI. Both parties agreed to inspect.

Investigator’s Observation: I was shown a drywall repair done around the entry door. I noted that the drywall texture applied was acceptable however, the repaired area was not painted.

Paint should match surrounding areas as closely as possible.

Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 19 - Gap between kitchen sink and cabinet.

This complaint item was added at the JSI. Both parties agreed to inspect.

Investigator’s Observation: I was shown a gap between the sink and the cabinet door. A gap and/ or space is needed in between the cabinet and the sink in order for the doors to open and close as intended. The space was not considered excessive in width. However, the filler pieces installed on both side of the sink were installed uneven and /or crooked.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 20 - No vents installed for attic ventilation

Investigator’s Observation: This complaint item refers to the attic ventilation of the house. Residence attic venting should meet any code compliance venting requirements.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 21 - Wrong cabinet installed in the kitchen island Cabinet is to be a garbage trash can holder

Investigator’s Observation: I was shown a section of the cabinets in the kitchen island that had shelves installed and did not served as a trash can holder cabinet.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 22 - – Island cabinet drawers can’t be used. Drawers only go halfway to the edge of the island counter top when fully open. Complaint item was added at this JSI and both parties agreed to inspect.

Investigator’s Observation: I noted that the drawers did not go more than

halfway pass the edge of the counter top when fully open. Drawers did not function as intended.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 23 - No attic ventilation in the garage.

Investigator’s Observation: Garage should meet any code compliance venting requirements.

Respondent shall correct by the appropriate means

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 24 - Addendum item: Does the pitch of the roof match the

house plans?

Investigator’s Observation: This is a contractual dispute not appropriate for the registrars' complaint process. The parties should address this issue in the appropriate civil venue.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship

Complaint Item: 26 - Addendum item: The exterior doors were left off for a very long time, due to that there is a lot of dirt, bugs and bird poop. We want to ensure that it will be cleaned. The window seals are all filthy-

Investigator’s Observation: I noted doors were installed at the time of this

JSI. Respondent is aware that the project has to be cleaned at completion and agreed to do so at this JSI.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship.

(All errors contained in the original).

On September 8, 2023, Investigator Bernal conducted a Jobsite Inspection and found that Complaint Items 14, 19, 22, and 26 were incomplete.

On October 31, 2023, Investigator Bernal completed and additional Compliance Jobsite Inspection. In his notes regarding the same, Investigator Bernal noted:

. . .

Compliance Findings:

Complaint Item: 14 - There is plaster all over the windows and the porch that needs to be removed.

Investigator’s Observation: I was shown several windows in various rooms that had spray foam and/or plaster residue on the frames and glass. Respondent is aware of the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Poor work not performed in accordance with professional industry standards.

Incomplete: Foam and Plaster residue still present on various windows and porch concrete slab. Throughout the residence.

Complaint Item: 19 - Gap between kitchen sink and cabinet. This complaint item was added at the JSI. Both parties agreed to inspect.

Investigator’s Observation: I was shown a gap between the sink and the cabinet door. A gap and/ or space is needed in between the cabinet and the sink in order for the doors to open and close as intended. The space was not considered excessive in width. However, the filler pieces installed on both side of the sink were installed uneven and /or crooked. Respondent is aware of the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Poor work not performed in accordance with professional industry standards.

Complete.

Complaint Item: 22 - – Island cabinet drawers can’t be used. Drawers only go halfway to the edge of the island counter top when fully open. Complaint item was added at this JSI and both parties agreed to inspect.

Investigator’s Observation: I noted that the drawers did not go more than halfway pass the edge of the counter top when fully open. Drawers did not function as intended.

Respondent is aware of the issue and agreed to correct it.

Respondent shall correct by the appropriate means

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Poor work not performed in accordance with professional industry standards.

Incomplete: Island cabinet drawers only extended half way pass the counter top cantilever when fully open.

Complaint Item: 26 - Addendum item: The exterior doors were left off for a very long time, due to that there is a lot of dirt, bugs and bird poop. We want to ensure that it will be cleaned. The window seals are all filthy-

Investigator’s Observation: I noted doors were installed at the time of this

JSI. However, the areas in question were not cleaned. Respondent is aware of the issue and agreed to correct it. Respondent shall correct by the appropriate means

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) Poor work not performed in accordance with professional industry standards.

Incomplete: The project (Residence) was not cleaned up. Windows and porch concrete slab still had plaster and foam residue.

This item was addressed in complaint # 14

(All errors contained in original).

On November 9, 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 November 24, 2023, Respondent e-mailed an Answer to the Registrar.

On or about December 6, 2024, a Notice of Hearing was issued setting a hearing on January 22, 2024 at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on March 4, 2024.

At hearing, Investigator Bernal testified as to the Registrar’s involvement and the above timeline.

Investigator Bernal testified that Complaint Items 14, 19, 22 and 26 remained incomplete.

Further, Investigator Bernal testified that as to Complaint Item 22, the kitchen island cabinet drawers, he verified that the drawers would not open up far enough the clear the edge of the countertop. On cross-examination, Investigator Bernal testified that he did not know which side of the island these drawers were supposed to be installed.

On cross-examination Investigator Bernal was questioned about Complaint Items 20 and 23, which had to do with vent work. Investigator Bernal testified that during his inspection he observed the vent work from the outside and approved the work. However, Pinal County performed its inspection afterwards, and it found that there was no gap to circulate the air, and therefore the corrective work performed would not be sufficient.

Complainant testified on her own behalf. She testified that as to the drawers, while they were supposed to be installed on the opposite end, she discussed with Respondent that an appropriate fix would be to get extenders such that the drawers would clear the countertop when opened. However, this was never performed.

In addition, Complainant testified as to the numerous other issues with the project such as the garage being smaller than contracted for and still not receiving blue prints for the same. Further the foundation of the house was not what was contracted for and incorrect.

Respondent presented no witnesses in its defense, Mr. Felder, informed the tribunal that Respondent’s qualifying party, Mark Merritt passed away on February 2, 2024.

Administrative notice was taken of Respondent’s prior License record on March 18, 2024. Such prior License record reflected that Respondent’s License No. 211169 was first issued on August 29, 2005, and reflected that there was one open cases, 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 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was also no dispute sd to the same. 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 complete the corrective work following the Directive being issued. Per Investigator Bernal’s and Complainant’s testimony the kitchen drawers remained uncorrected, there was still foam and plaster residue on the windows and front porch, only the stone ledger gaps were corrected, and everything else was left uncorrected. While it was extremely sad that Mr. Merritt has passed away, it was well after the time period for compliance. 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. 211169 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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, March 18, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Marci Gottfredson

[email redacted]

Lawrence J. Felder, Esq.

[email redacted]

[email redacted]

By: OAH Staff