ALJDEC - Licensing
2024A-04309-CHC-ROC · Registrar of Contractors · 2024-11-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Steven Walter Szymanski,
COMPLAINANT,
v.
Magnolia Home Builder PLLC,
License No. ROC 322613,
RESPONDENT.
No. 2024A-04309-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 17, 2024
APPEARANCES: Steven Walter Szymanski represented himself. Christine Miller represented Magnolia Home Builder PLLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC Hearing Packet (Packet); Respondent Exhibits A through H.
_____________________________________________________________________
FINDINGS OF FACT
Magnolia Home Builder PLLC (Respondent) is the holder of B-General Residential Building Contractor License No. 322613 issued by the Arizona Registrar of Contractors (Registrar or ROC) on November 14, 2018.
On or about November 5, 2021, Steven Walter Szymanski (Complainant) signed a contract with Respondent for construction of a new custom built home.
Respondent began work on May 16, 2022.
On or about April 13, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. Complainant indicated that work on the project was last performed on July 31, 2023.
The Registrar’s Investigator John Peru sent a letter to the parties scheduling a jobsite inspection for May 9, 2024.
Investigator Peru inspected the complaint items and, after the jobsite inspection, he issued a written directive (Directive) dated May 14, 2024 to Respondent that provided the following statements:
After investigation, the Registrar has verified 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 Tuesday, June 4, 2024.
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 reasons, 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 - Vinyl flooring not performing correctly. Some areas are lifting, some are separating. Making popping noises as you walk.
Investigator’s Observation: Verified.
At the time of this inspection, there were several areas in the home that exhibited signs of poor installation. There were areas of cupping/peaking, areas of hollow contact with the substrate, and some areas separating at the joints. The Respondent stated that this was a Floating LVP Floor system, and that the subcontractor (Mic Mar) was responsible for the integrity of the installation. The subcontractor (Mic Mar) stated that they did not initiate the Substrate Prep, and produced a signed "Subfloor Prep Waiver." The Respondent acknowledged that they performed the Subfloor Prep. All Parties acknowledged that the Respondent (GC) inspected and accepted the Floating LVP Floor Installation performed by the subcontractor (Mic Mar), per "Surface acceptance," and continued the project with the Baseboard installation and the Fireplace Stacked Stone installation. I substantiated the fact of "Fireplace Stacked Stone too tight on flooring," I was not able to slide a card 1/32" underneath the Floor/stacked stone junction. This would impede the "Floating Floors" ability to expand and contract, resulting in the failure of the installation.
REF:(P)1 through (P)5.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 2 - Walkable 2nd floor deck holding water excessively exceeding ROC guidelines of 1/2" and 48 hours
Investigator’s Observation: At the time of this Inspection both parties acknowledged the allegations, and the Respondent has agreed to inspect and make all necessary repairs.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 3 - Flat roof holding water in excess of ROC guidelines of 1/2" and 48 hrs.
Investigator’s Observation: At the time of this Inspection both parties acknowledged the allegations, and the Respondent has agreed to inspect and make all necessary repairs.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 5 - Numerous walls are out of square/plumb
Investigator’s Observation: Verified.
At the time of this inspection, there were areas in the Spare Bedroom, Master bedroom Hallway, Master Bedroom En Suite entrance that had out of square walls. The Respondent acknowledged the allegations, and stated that they would make the corrections.
REF:(P)6 through (P)9.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 6 - Main Bedroom Closet not built per plan.
Investigator’s Observation: Not able to determine at this time.
Governing Rule: N/A
Compliance Item: 7 - Concrete floor not prepped properly prior to installing floor.
Investigator’s Observation: Not able to determine at this time. The
subfloor was not exposed/open for inspection.
Governing Rule: N/A
Compliance Item: 8 - 3 rooms of the house are warmer than the rest of
house. Temp drop is only -12
Investigator’s Observation: Not able to determine at this time.
Governing Rule: N/A
Compliance Item: 9 - Island trim still not finished after counter replacement as agreed upon during prior ROC visit
Investigator’s Observation: No correction needed, within the Minimum
Workmanship standards.
Governing Rule: N/A
Compliance Item: 10 - Exterior window trim still not completely cleaned.
Stucco, Paint never removed
Investigator’s Observation: Not able to determine at this time.
Governing Rule: N/A
Compliance Item: 11 - Interior and Exterior doors need adjusting. Cabinet
drawers need adjusting. No follow up after move in
Investigator’s Observation: At the time of this inspection, the
Respondent made the necessary adjustments.
Governing Rule: N/AItem: 2 - The inside of the cabinets in the kitchen and laundry room have gaps between the sides and bottom.
Investigator’s Observation: Conditions described are present; however, not excessive, therefore considered to be meeting workmanship standards.
Governing Rule: N/A
On June 12, 2024, Investigator Peru issued an amended written directive (Amended Directive) extending the deadline for compliance to July 12, 2024 and also indicating as to Complaint Item 4:
Through the Written Directive Process, the Complainant elected to disregard this Complaint Item, and does not want the Respondent to initiate any corrections on the cabinetry in the Butler Pantry Area.
On June 18, 2024, Investigator Peru sent a letter to the parties scheduling a further jobsite inspection for June 24, 2024, specifying the inspection would deal with Complaint Item 3, the allegation that the flat roof was holding water. At the time of that inspection, Complaint Item 3 was again noted to be in need of correction.
On July 22, 2024, Investigator Peru conducted a compliance jobsite inspection. At the compliance inspection, Investigator Peru found that Complaint Items 2 and 3 were within workmanship standards. However, he found that Complaint Items 1 and 5 remained in need of correction. Regarding those remaining compliance items, Investigator Peru noted as follows:
Compliance Item: 1 - Vinyl flooring not performing correctly. Some areas are lifting, some are separating. Making popping noises as you walk.
Investigator’s Observation: Verified.
At the time of this Compliance Jobsite Inspection, there were (2 Vinyl Planks separated); In Kitchen, front of the dishwasher/one in the Game Room, near Base Cabinetry.) Both of the planks were separated on the short tongue and groove side. Additionally, the T-molding located at the Front Entry Threshold was not flush/installed appropriately. Furthermore, the Scribe Molding on the Base Cabinet in the Game Room/left side of wall, was removed and not re-installed, and the Scribe Molding along the Toe-Kick was cut too short. REF: (P) 10. (P) 11, (P) 12, (P)13.
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: 5 - Numerous walls are out of square/plumb
Investigator’s Observation: Verified.
At the time of this Compliance Jobsite Inspection, the Short Wall in the MasterBedroom/ Master Bathroom, was measured to be 1⁄2” out of square.
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.
On July 30, 2024, the Registrar issued a Citation against Respondent, charging possible violations: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B); and Ariz. Rev. Stat. § 32-1154(A)(22).
On August 14, 2024, Respondent emailed its Answer to the Citation, stating that the subcontractor on the floors had not been held accountable for the original flooring installation and the initial flooring issues but that Respondent had then come back in and removed that install, installed a vapor barrier, and then installed new flooring throughout the home at Respondent’s cost. Respondent indicated that, post the second installation, they had done a walk through with Complainants who were satisfied with the work. Additionally, that with regard to the transitional molding at the front door, Respondent had left a 1⁄4 inch gap per manufacturer’s recommendation to ensure the floor “performs as required,” and had had to install the molding with a seam due to the unique layout at that location. Finally, Respondent indicated that it had worked in good faith to resolve the out of plumb walls which locations had been determined corrected at the time of the compliance inspection and that Complainants were now complaining about an “opposite side” of a wall, which opposite side had not been included in the Directive.
The matter was not completely resolved by the parties prior to the administrative hearing.
At hearing, Investigator Peru testified with regard to his directive findings. Investigator Peru specifically noted that the short wall remaining of concern was, in fact, one wall with the same framing; it was the wall between the master bedroom and master bathroom. Investigator Peru further indicated that, even though that wall may have been worked on, if a corrective repair causes another issue, the contractor would still be out of compliance on that item.
At hearing, Complainant argued that they were supposed to be moved in in November of 2023 and now they are still having flooring issues; he fears the flooring is likely to get worse and they want to hire another contractor to fix the flooring issues. Complainant noted that they were following the allowable complaint process and were not required to allow Respondent to make repairs after the stated July 12, 2024 directive deadline.
At hearing, Respondent noted that, as to the flooring, they had removed all the original install and base boards, and then had ground down the subfloor where required and installed vapor barrier before installing the new flooring which had been allowed to acclimate before its installation. Respondent believed that, due to the use of the front door, the molding at the front door had shifted since their corrective work (i.e., since the new flooring and reinstallation of molding). Respondent argued that the installation had been inspected/walked through with the Complainants at that time and Complainants they had been satisfied. Respondent noted that, despite reaching out several times to Complainants to see if things were resolved, Complainants had not contacted Respondent with regard to any further concerns after that that last day of work, indicating that Respondent would have addressed the concerns.
Respondent argued that the short wall with the pop-out (on the bedroom side) is not the same wall that was called out in the Directive and further argued that both walls are plumb.
Investigator Peru acknowledged that one side of the “wall” in question contains the pop-out and the other side is flush with the bath vanity, but further indicated that the “wall” contains shared framing. At the compliance inspection, Investigator Peru found that the wall was about 1⁄2 inch out of square.
Overall, Respondent argued that they had gone to great lengths at their own expense to make the repairs had wanted to do repairs as necessary but Complainants had not reached out to them after Respondent’s last day of work. Respondent argued it was not reasonable to not let them come back to do repairs after the compliance inspection.
Administrative notice is taken of Respondent’s license records on November 6, 2024. Respondent’s licensure records reflects that Respondent’s license was disciplined in 2023 and three other complaints was resolved by the parties in 2024. The instant complaint is the only open complaint against Respondent’s License No. 322613.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Following the issuance of the Directive mandating correction of four workmanship items, Investigator Peru found that two workmanship issues still existed at the time of the compliance inspection. At hearing, Investigator Peru testified that those workmanship issues had been uncorrected at the time of the compliance inspection.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108, for failure to perform all work in a professional and workmanlike manner.
11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive by the Directive deadline. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 322613 as follows:
a two business-day suspension on the effective date of the Registrar’s Order in this matter; and,
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 may 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, November 6, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
John Peru
[email redacted]
Steven Walter Szymanski
[email redacted]
Magnolia Home Builder PLLC
[email redacted]
By: OAH Staff