ALJDEC decisions subject to certification as final

2010A-308472581-ROC · Registrar of Contractors · 2011-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2011 APPEARANCES: Michael Perri and Roslyn Thompson appeared personally. Nu Vista Homes, Inc. was represented by its attorney, Gordon S. Bueler, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Nu Vista Homes, Inc. (“Respondent”) is the holder of License No. 122360, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent was the general contractor for the construction of a custom home located at 3310 E. Huber Street, Mesa, Arizona (“Subject Residence”). 3. Respondent constructed the Subject Residence for Shin Y. Su. 4. The local building authority gave the final zoning approval for the subject residence on May 9, 2008. 5. Shin Y. Su closed escrow on the Subject Residence in May 2008. 6. The evidence of record established that Shin Y. Su was the first purchaser of the Subject Residence. 7. The evidence of record established that Respondent’s responsibility for its workmanship began when Shin Y. Su closed escrow for the purchase of the Subject Residence in May 2008.[1] 8. Shin Y. Su entered into an agreement with Mega Financial Services, L.L.C. (“Mega”) dated March 8, 2010, for the purchase of the Subject Residence. Those parties also entered into written Addendums. 9. During negotiations for the sale of the Subject Residence, Shin Y. Su agreed to some concessions requested by Mega, but rejected others. 10. Shin Y. Su provided the financing for the purchase of the Subject Residence. 11. Shin Y. Su and Mega closed escrow on the sale of the Subject Residence on March 19, 2010. 12. Michael Perri and Roslyn Thompson (“Complainants”) are the members of Mega. 13. On April 23, 2010, Mega filed a written Complaint with the Registrar alleging deficient workmanship by Respondent. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 14. In response to the filed Complaint, the Registrar’s assigned inspector, Beau Cruz, performed a jobsite inspection at the Subject Residence to view the Complaint items. As a result of that inspection, Inspector Cruz issued a Corrective Work Order dated May 17, 2010, that addressed the Complaint items as follows: The contractor is to correct the following by the appropriate means

Complaint 1) Patio support columns in back patio are splitting: Two 14 x 14 inch wood roof support posts/columns (west posts) for the rear patio are splitting vertically with splitting of up to ¾ on and [sic} inch and traversing approximately ½ way to the middle of the posts. Although the support posts /columns are acting as intended and do not appear to be structurally compromised, water infiltration is a concern and contractor is to correct by the appropriate means.

Complaint 4) Wrought iron on front entry pony wall is corroded: Surface corrosion noted on the upper and lower rails of the wrought iron on the east (right) front entry pony wall.

Complaint 5) Water infiltration on east and west stucco walls by barbecue and pool spa: Spalling and delaminating on the stucco surface of the wall adjoining the pool as well as around the exterior of the spa structure.

Complaint 6) There is no handrail on the steps to the barbecue or spa area: 7 stair risers on the Barbecue pit area and 5 going up to the deck of the spa area. Handrails[sic] area required on at lest [sic] one side of a continuous run of treads or flight with four or more risers.

Complaint 7) Lights and fan do not work on around [sic] the barbecue: Only left lower light only light fixture would energize and fan was non-operational.

Complaint 8) Pool spa does not have a skimmer: Skimmer is not required when water drains into pool area via water fall feature. Water barely flows over the water ledge back into pool when operational.

Complaint 14) Master bathroom tub faucets are spraying on the outside of bathtub: Tb [sic] spouts spray water on the tub ledges and adjoining wall structures.

Complaint 15) Master bathroom tub faucet leaks continuously: North tub spout faucet does [not] completely turn off, continuous dripping noted.

Complaint 16) Master bathroom chandelier crystals need to be put on: Crystals not installed on chandelier.

Complaint 17) Master bathroom inside cabinet walls, missing panels: Missing inner panels noted on both sides of “Hers” sink cabinet, drawer tracks and hardware visible.

Complaint 18) Master bathroom cabinets his/hers second drawer does not slide: Left middle drawer of “Hers” is not gliding or closing properly and not functioning as intended.

Complaint 19) Master bathroom missing cover for water sprinkler in bathroom: Missing water sprinkle[r] escutcheon for the sprinkler head on bathroom side of Arch entrance.

Complaint 21) Entry way to master lights in recessed wall goes off and on: Recessed halogen can lights in the niche wall(s) go off after a few minutes in operation.

Complaint 22) Drywall in office peeling off and tapered through: Missing drywall mud noted on the bull nosing bellow [sic] the third hinge from the top.

Complaint 23) Dishwasher does not work: Dishwasher non- operational after approximately 1 minute and no water was noted entering unit after start cycle.

Complaint 24) Light over stove does not work: Left light fixture in the exhaust fan hood does not work.

Complaint 25) [T]rim on top shelf in pantry is coming off: Bull nose trim on edge of upper shelf to the right as you walk into pantry is loose.

Complaint 31) Peeling of ceiling finish in master bathroom: Peeling paint/drywall next to sprinkler head at entrance to master bathroom area.

Complaint 33) Concrete masonry wall for left entry gate is leaning causing gate not to close: Stucco coated CMU block fence wall on the hinge side of the left entry gate separated from stucco causing entry gate to bind.

Complaint 34) Gaps noted between the vertical and horizontal support beams for the rear patio lid and structure: Large gaps noted between the structure and the support beams of the structure. These gaps appeared to be in between 1/4 and 3/8 of an inch in width. Although beams are acting as intended, water infiltration is a concern and contractor is to correct by the appropriate means.

No action required of the following

Complaint 2) French doors in office, game room and bedroom are peeling: Home previously owned, titled and vacant for one and ½ years, contractor only required to adjust or replace the weather stripping one time during the first year of ownership.

Complaint 3) Garage doors are faded rubbing and peeling: Peeling of finish on the wood garage doors with warped and split lower rail(s) on the N/E door. This home was previously owned, titled and sat vacant for one and ½ years. The contractor correct or repair deteriorating finish one time during the first year of ownership. Rubbing that is only required was alleged was on door to the left of the N/E door and no rubbing noted of the door against the top of frame when operated.

Complaint 8) Pool spa does not have a skimmer: Skimmer is not required when water drains into pool area via water fall [sic] feature.

Complaint 9)[B]oth heat/AC pumps next to the pool need to be electrically bonded: Heat pumps are only required to be grounded.

Compliant [sic] 10) Lights do not work on patio pavers in back patio: Homeowner stated that his landscaping contractor corrected prior to jobsite inspection, therefore negate this item from complaint.

Complaint 11) Landscape lights do not work in back and front yard: Homeowner stated that his landscaping contractor corrected prior to jobsite inspection, therefore negate this item from complaint.

Complaint 12) [O]utside outlets are not GFI or weather proofed [sic]: Outlets are GFCI protected and weatherproofed.

Complaint 13) Hinges on doors going to the pool need self closing hinges door do not close on their own two are missing on each door: Door(s) and closed properly with two hinges. Only two required.

Complaint 20) Master bedroom ceiling fan is not level is wobbling and making noise: Ceiling fan appeared to operate correctly with minimal wobbling and no perceptive noise present. Homeowner stated that it is sporadic and to negate this item from complaint.

Complaint 26) Weather seal need at front entry door: Home previously owned, titled and vacant for one and ½ years, contractor only required to adjust or replace the weather stripping one time during the first year of ownership.

Complaint 27) Weather seal needed at game room French doors: Home previously owned, titled and vacant for one and ½ years, contractor only required to adjust or replace the weather stripping one time during the first year of ownership.

Complaint 28) [P]lumbing leak under sink in bathroom bedroom #2: No leaking noted when water operated and sink full and maximum drain rate. Homeowner stated to negate this item from complaint

Complaint 29) outlet plug in bathroom bedroom #2 does not work: GFCI protected thru GFCI receptacle in hall bathroom.

Addenda to compliant

Complaint 30) Failure of side weather stripping of garage doors: This home previously owned, titled and sat vacant for one and ½ years, contractor only required to adjust or replace the weather stripping one time during the first year of ownership.

Complaint 32) Daylight noted at the bottom of entry door: Home previously owned, titled and vacant for one and ½ years, contractor only required to adjust or replace the weather stripping one time during the first year of ownership.

(Emphasis in the original).

15. Inspector Cruz issued a second Corrective Work Order dated May 19, 2010, that provided the following: “Amended CWO is to replace CWO issued May 17, 2010 due to Close of Escrow is the effective date of the Registrar of Contractors Jurisdiction.” (Emphasis in the original). The second written directive required Respondent to timely perform remedial work to the following Complaint items: Complaint item 2; Complaint item 3; Complaint item 26; and Complaint item 27. 16. The Registrar issued a Citation and Complaint dated September 15, 2010, in Case No. 2010-[number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4- 9-108, (13), specifically A.R.S. § 32-1124(B), and (23). 17. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 18. On February 11, 2011, the Registrar issued a Notice of Amendment in Case No. 2010-[number redacted] that removed Mega as the named Complainant and substituted Complainants. 19. The evidence of record established that the Registrar’s jurisdiction over the acts or omissions by Respondent is within two years from the date Shin Y. Su closed escrow on the Subject Residence, the first close of escrow, not from when Complainants or Mega closed on the purchase of the Subject Residence. 20. Complainants have no privity of contract with Respondent. 21. Respondent is responsible for performing remedial work for deficient workmanship found during the 2-year period following the closing date of escrow by Shin Y. Su, or as provided by the Registrar’s workmanship standards. Respondent shall perform remedial work to such Complaint items set forth in the May 19, 2010 Corrective Work Order. However, Respondent is not responsible for homeowner maintenance items set forth in the Registrar’s workmanship standards. 22. The evidence of record failed to establish Respondent’s responsibility for providing crystals for the master bathroom chandelier. There is credible evidence the master bathroom chandelier was installed without crystals at the direction of Shin Y. Su. 23. The evidence of record established that Respondent failed to comply with the Registrar’s May 19, 2010, Corrective Work Order for work performed within 2 years from the close of escrow by Shin Y. Su. 24. The evidence of record failed to establish that Respondent failed to properly list its contracting license number as required by statute. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case for acts or omissions committed by Respondent within two years from the date of the closing of escrow by Shin Y. Su. Pursuant to A.R.S. § 32-1155(A), “[t]he two year period prescribed by this subsection shall commence on the earlier of the close of escrow or actual occupancy for the new home or other new building construction and otherwise shall commence on completion of the specific project. The evidence of record established that the two-year period commenced on the date of the close of escrow by Shin Y. Su. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent is responsible for performing remedial repairs to the Complaint items set forth in the Corrective Work Order dated May 19, 2010, that occurred within two years from the date of closing of escrow by Shin Y. Su, except for furnishing the master bathroom chandelier crystals or any work not required by the Registrar’s workmanship standards. 4. The evidence of record established that Respondent is responsible for items of deficient workmanship and, therefore, violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. 5. The evidence of record does not establish that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32- 1128(B). Complainants did not contract with Respondent. At hearing, Complainants failed to present any credible evidence to establish that Respondent failed to properly list its contracting license number on specified as required by statute. RECOMMENDED ORDER Respondent’s License No. 122360 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent submits written proof to the Registrar, and the Registrar approves such proof, that Respondent performed remedial work in a workmanlike manner to the Complaint items set forth in the Corrective Work Order dated May 19, 2010, that occurred within two years from the date of closing of escrow by Shin Y. Su, except for furnishing the master bathroom chandelier crystals or any work not required by the Registrar’s workmanship standards. If Respondent provides the Registrar with written proof that Respondent completed remedial work in a workmanlike manner to the Complaint items set forth in the Corrective Work Order dated May 19, 2010, that occurred within two years from the date of closing of escrow by Shin Y. Su, except for furnishing the master bathroom chandelier crystals or any work not required by the Registrar’s workmanship standards, on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves such proof of compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010-[number redacted] shall be closed. In addition to the above-provided disciplinary penalties, if any, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2010- [number redacted] shall result in the automatic revocation of Respondent’s contracting 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) (5), unless payment of any outstanding prior civil penalty is tendered. 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 40 days from the date of that certification. Done this day, June 20, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The exact date for the close of escrow was not established at the hearing.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826