ALJDEC - Licensing

2023A-14483-CHC-ROC · Registrar of Contractors · 2024-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tommy Ford,

COMPLAINANT,

v.

Shea Homes Limited Partnership

License No. ROC 195895,

RESPONDENT.

No. 2023A-14483-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2024

APPEARANCES: Complainant Tommy Ford appeared on his own behalf. James Hanson, Esq. represented Respondent Shea Homes Limited Partnership. Zach Waite and Kevin Pike appeared as witnesses for Respondent Shea Homes Limited Partnership. Arizona Registrar of Contractors Investigator Daniel Edwards appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Respondent Shea Homes Limited Partnership’s Exhibits 1-11; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Shea Homes Limited Partnership (“Respondent”) is the holder of License Number 195895 issued by the Arizona Registrar of Contractors (“Registrar”).

Tommy Ford (“Complainant”) purchased a home that had been newly constructed by Respondent.

On or about December 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to some of the work performed by Respondent.

The Registrar assigned the Complaint to Investigator Daniel Edwards. After a January 22, 2024 Jobsite Inspection, Investigator Edwards issued a Written Directive to Respondent, dated February 6, 2024, 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 March 1, 2024.

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

Compliance Item: 2 - The exterior paint did not get adequate coverage

Investigator’s Observation: The grey portions of the exterior walls appear to require additional paint - paint coverage and overall appearance is poor. Respondent shall correct by appropriate means. Parties are advised that some inconsistencies in the appearance of painted walls are common on stucco sand finishes.

Compliance Item: 5 - Grouting around front bathroom toilet

Investigator’s Observation: Bathroom toilet was reportedly replaced since occupancy and the toilet base is not sealed. Shims are visible at the sides of the toilet. Parties are reportedly planning to address this issue. Respondent shall correct by appropriate means.

Compliance Item: 7 - Touch up painting on interior rooms

Investigator’s Observation: Some paint touch ups have been performed inside the home. Each location observed during the inspection exhibits minor differences in sheen when compared to surrounding areas. These inconsistencies are only visible under specific lighting conditions and at specific angles. Paint match appears to be acceptable when viewed head-on under normal lighting. While the paint match would not appear to be perfect, the work meets the minimum standards enforced by the Registrar.

There ARE minor touch ups required at the drywall in the hallway where small divots/dings are present around the windows. These areas appear to have been caused during window repairs, but the drywall was never patched and was subsequently painted. Additionally, wall paint has been smeared onto the base of at least one window frame. Respondent shall correct these areas by appropriate means. Complainant will need to assist in identifying all areas where this concern is present.

Compliance Item: 8 - Main A/C unit makes noise when turning on

Investigator’s Observation: Unit is a Lennox ML14XC1-0420230A07.

The liquid line service valve is rattling when the unit is engaged. This is causing an excessive amount of noise. Respondent shall correct by appropriate means.

Compliance Item: 9 - Side gate slats not holding up, bending

Investigator’s Observation: Slats are warping in place. Respondent shall correct by appropriate means.

Compliance Item: 14 - Caulking where kitchen cabinet repairs

Investigator’s Observation: Caulking needed at scribe molding along cabinet to the left of the range hood. Additionally, there are voids in the grout adjacent to the molding. Respondent shall correct by appropriate means.

Compliance Item: 15 - Kitchen hardware loose / align / re-inforce

Investigator’s Observation: Pull out drawer at island is loose and does not appear to be adequately secured to the drawer face. Respondent shall correct by appropriate means. Loose screws at door and drawer hardware (handles/knobs) have been addressed by the homeowner, additional loose hardware is not a workmanship issue and can be readily corrected by the homeowner.

Compliance Item: 16 - Spice rack drawer not aligned properly

Investigator’s Observation: Spice rack drawer does not appear to be overloaded and is very difficult to operate along its intended range of motion. Respondent shall correct by appropriate means.

Compliance Item: 18 - Master bedroom wall texture behind door

Investigator’s Observation: Wall texture behind the door does not match surrounding areas, area is smooth and lacks comparable texture compared to surrounding areas. Respondent shall correct by appropriate means.

Compliance Item: 19 - Touch up paint around hood stack in kitchen

Investigator’s Observation: Areas surrounding hood appear to be missing paint. Respondent shall correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - The kitchen sink is cracked, not a material defect

Investigator’s Observation: Per complainants, the crack in the sink appeared approx. 10 months after occupancy. Per standards, "Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in." At this time, there is insufficient evidence to order corrective action for this issue and this would need to be addressed with the product manufacturer.

Compliance Item: 3 - Fascia board with putty filler

Investigator’s Observation: A fascia board was observed to have wood filler applied to the board and painted. This does not appear to violate any workmanship standards enforced by the Registrar.

Compliance Item: 4 - Patio lid uneven drywall @ edges and sections

Investigator’s Observation: Patio lid edges were caulked prior to inspection. Work appears to meet minimum standards. Some cracks are present in the patio lid drywall. Per standards, respondent is responsible to correct nail pops, hairline cracks and seam lines one time within the first year. After the first year these issues are considered owner maintenance items. At this time, there is insufficient evidence to verify that the cracks observed at inspection were present within the first year and reported at that time. Respondent has already performed drywall repairs since occupancy and there is insufficient evidence to verify these cracks were included in the drywall punch coordinated between the parties.

Compliance Item: 6 - Grouting at all base boards

Investigator’s Observation: Minor separation and grout cracks are present where the baseboards meet the tile. Per standards, Per standards for grout cracks up to 1/16th" where grout meets dissimilar materials (such as baseboards), "Contractor should correct one time within the first year." At this time no evidence has been submitted verifying respondent was notified of this condition within the first year. Additionally, baseboards are not required to be grouted/caulked, per any standards. No action is required for this item.

Compliance Item: 10 - Stucco cracks in exterior walls

Investigator’s Observation: None of the cracks observed at inspection appear to exceed the allowable tolerance of 1/16". Work appears to meet minimum standards.

Compliance Item: 11 - Stucco cracks at all exterior windows/sliding door

Investigator’s Observation: Caulking cracks are present at multiple windows and slider door as described. These appear to be common caulking cracks due to expansion/contraction of dissimilar materials. Per standards, owner maintenance items include, "Interior and exterior caulking (excluding roofing sealant) after the first year of occupancy." At this time, no evidence has been submitted that these cracks were specifically reported to the respondent within the first year of occupancy. Issue is considered an owner maintenance item at this point in time.

Compliance Item: 12 - Courtyard & exterior wall cracks at flashing

Investigator’s Observation: Flashings described are actually weep screeds at the base of the stucco. Cracks are occurring where the metal meets the base of the stucco. This is typical and does not appear to violate any workmanship standards enforced by the Registrar.

Compliance Item: 13 - Bathroom lights that flicker

Investigator’s Observation: Light fixtures are LEDs and not observed to flicker during inspection. LED fixtures are sensitive to changes in draw and I am unable to verify any flickering is due to a workmanship deficiency caused by the respondent. Issue likely needs to be addressed with the product manufacturer.

Compliance Item: 17 - Reduction in water pressure

Investigator’s Observation: Complainant has a tankless water heater (Rannai V75iN). Per complainant, filter screen was cleaned in the past and water pressure improved. Additionally, complainant has concerns over the water pressure being supplied by the local municipality. At this time there is

insufficient evidence to discern whether the issue is being caused by a workmanship deficiency caused by respondent, a maintenance issue, or issues outside of respondent's control (such as a municipal water supply issue).

Compliance Item: 20 - Touch up paint for kitchen cabinets

Investigator’s Observation: Per complainant, this issue has been resolved.

All errors in original.

Investigator Edwards testified that on February 28, 2024, he received an email from Respondent stating that all items ordered to be addressed on the Written Directive had been completed. Investigator Edwards emailed Complainant to verify compliance. Complainant declined to acknowledge such. Thereafter, Registrar leadership reviewed the matter and on March 8, 2024, issued an Amended Written Directive with a deadline date of March 25, 2024, which further required Respondent to:

[R]emedy the following violations by the appropriate means:

Compliance Item: 1 - The kitchen sink is cracked, not a material defect

Investigator’s Observation: Crack originates at the sink drain. Per communications with the sink manufacturer, manufacturer determined that the crack is likely due to overtightening the garbage disposal. Respondent shall correct by appropriate means.

Respondent disputed the Amended Written Directive and requested that the Registrar rescind it. The Registrar denied the request.

On March 26, 2024, Investigator Edwards verified with both parties that no work had been performed regarding Complaint Item Number 1.

Investigator Edwards referred the matter 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 Edwards testified that that he did not initially order Respondent to perform any corrective work to the sink because the damage was to a manufactured surface and no evidence was presented by Complainant establishing that it was reported within ten (10) days of completion or move in, as required by the Registrar’s rules. Investigator Edwards testified that the crack appeared approximately ten months after Complainant moved into the home. Thereafter, Complainant sent information indicating that the location of the crack was indicative of overtightening of the garbage disposal drain. Consequently, the Registrar’s position was that if the issue was aggravated by actions of Respondent, Respondent should be responsible for such.

At the time of hearing, the parties agreed that the only item that remained in dispute was Complaint Item Number 1, the crack in the sink. Investigator Edwards testified that he does not know the cause of the crack in the sink but agreed with Kohler, the sink manufacturer, that the crack appeared to be due to overtightening of the garbage disposal drain.

Complainant testified that he noticed the crack in the sink on the eleven month walk through, eleven months after he moved into the home. Complainant testified that he “thinks” the crack was caused by overtightening the garbage disposal, but does not actually know what caused the crack. Complainant contended that the email he received from Kohler is evidence of the cause of the crack, as the email stated that “the crack seems to be due to overtightening of the drain.” However this assumption was based on a photograph that Complainant sent to Kohler and Complainant did not inform Kohler that the crack appeared approximately ten or eleven months after installation.

Complainant testified that Kohler provided a replacement sink but will not cover the cost of the labor for removal of the existing sink and installation of the new sink. Complainant acknowledged that a Kohler representative had not inspected the sink.

Kevin Pike is a field technician for Flying Colors, an authorized Kohler representative. Flying Colors is contracted by builders, such as Respondent, to perform repairs to surface materials for builders. Mr. Pike testified that while he was at the home for other reasons, Complainant showed him the sink and crack and that he initiated the replacement of the sink by Kohler, believing that the crack was a manufacturer issue. However, Mr. Pike testified that he had no idea who or what caused the crack and Complainant acknowledged that he did not disclose to Kohler that the crack appeared eleven (11) months after installation.

Zach Waite, Warranty Manager for Respondent, testified that Kohler replaced the sink for Complainant, at a cost of $1,800.00, because Kohler believed the crack was a manufacturer issue. Mr. Waite further testified that Complainant did not notify Respondent of the crack until approximately ten or eleven months after Complainant moved into the home. Mr. Waite asserted that he does not know who caused the crack, but does not believe it was Respondent or any of Respondent’s trades.

Respondent argued that there is insufficient evidence to establish that Respondent is responsible for the crack and that none of the witnesses that testified, including Complainant, can establish who is responsible for the crack.

Administrative notice is taken of Respondent’s prior License record on August 28, 2024. Such prior License record reflects that Respondent’s License Number 195895 was first issued on May 9, 2004, and is active. Such prior License record also reflects that there is only the instant open Complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

The Registrar’s Workmanship Standards set forth the following: “Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in.”

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.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-1154(A) provides:

The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. . . .

A.A.C. R49108(A) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Regarding the Registrar’s charge of poor workmanship, the only item of Complaint that remained at the time of hearing was the crack in the sink. Complainant did not notify Respondent of the crack until ten or eleven months after Complainant moved into the home. None of the witnesses who testified, including Complainant, could say with any certainty as to who or what caused the crack. The email Complainant received from Kohler attributing the crack to the overtightening of a drain, was based on a picture that Complainant sent to Kohler. Complainant did not disclose to Kohler that the crack appeared ten to eleven months after Complainant moved into the home. Moreover, Complainant failed to establish that the crack was attributable to Respondent and not an intervening act. There was no evidence presented that Respondent performed a tightening of the drain to the garbage disposal. The Registrar’s Workmanship Standards are clear that a “Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in.” In this case, Complainant did not report the crack until ten to eleven months after move in. Therefore, Complainant failed to prove that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R49108(A).

Regarding Respondent’s alleged failure to comply with the Amended Written Directive, the Administrative Law Judge concludes based on the credible, probative, and substantial evidence presented at hearing that Respondent complied with all aspects of the Amended Witten Directive with the exception of the Complaint regarding the sink, and that Respondent established valid justification for not complying with that item on the Amended Written Directive.

RECOMMENDED ORDER

It is recommended that the Registrar dismiss Complaint Number 2023-14483 against Respondent.

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, August 30, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

[email redacted]

Tommy Ford

[email redacted]

James N. Hanson

LANG & KLAIN, PC

[email redacted]

[email redacted]

Daniel Edwards

[email redacted]

By: OAH Staff