ALJDEC decisions subject to certification as final

2012A-2960-ROC · Registrar of Contractors · 2013-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2013, at 8:00 a.m. APPEARANCES: Charles Richards (hereinafter “Complainant”) appeared through his attorney, Karl MacOmber, Esq., Karl MacOmber Law Office. Primavista Homes Inc (hereinafter “Primavista”) appeared through its attorney, Jerry Laney, Esq., Laney & Jaszewski Law Office. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Primavista is the holder of License No. B.093152-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant purchased a new residence constructed by Primavista. 3. Complainant was dissatisfied with Primavista’s workmanship and demanded that Primavista properly correct its work to his satisfaction. When Primavista failed to comply with his demand, Complainant filed a formal Complaint against Primavista with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted an onsite inspection. Inspector Allen issued a written Corrective Work Order on July 10, 2012, directing Primavista to perform designated corrective work on Complainant’s residence. 5. The July 10, 2012 Corrective Work Order provided, in pertinent part, as follows: License # ROC 093152 issued to Primavista Homes Inc. has expired on 04/01/12 and cannot do or sub-contract the recommended corrective work listed in this directive. The only available remedy under this license status, if appropriate, would be financial settlement.

1. The jobsite inspection found that the roof coating has failed throughout. There are cracks, splits, alligatoring and exposed underlayment throughout. The contractor is to hire a properly licensed roofing contractor to inspect and correct the roof by appropriate means.

2. The jobsite inspection found some stucco cracks wider than 1/16”. Correct by appropriate means.

3. The jobsite inspection found gaps up to ¼” between the stucco and the metal porch lid and lots of up to ¼” “puckers”/gaps at the metal laps in the field. Correct by appropriate means.

4. The jobsite inspection found “hammering” of both hot and cold water lines. Correct by appropriate means.

5. The jobsite inspection found the doors operating properly but the weather-stripping is torn throughout. Correct by appropriate means.

6. The jobsite inspection found that the gates do not close or latch. There are missing parts, loose screws, missing strike plates, uneven spaces at the welded hinges, etc. Correct by appropriate means.

7. The jobsite inspection found excessive rock/gravel with deep ruts. Correct by appropriate means.

8. The jobsite inspection found the concrete cracks to be acceptable. No action required.

9. The jobsite inspection found that the contractor refuses to provide the homeowner with a list of sub-contractors. The contractor is to provide a [list] of the subcontractors.

10. The jobsite inspection found no specifications regarding the layout of the fence (fences are constructed both ways-level or following the lay of the land). No action required.

11. The jobsite inspection found the GFCI at the Kitchen bar hanging from the wall and several receptacles are dead including one in an adjacent room. The contractor is to hire a properly licensed electrical contractor to inspect and correct the electrical problem.

12. Item from addendum dated 06/11/12[.] The jobsite inspection found a green discoloration below the valve and spigot at the transition between the shower wall and the tub. The contractor is to determine the cause and correct by appropriate means. If it is a plumbing leak, the contractor is to hire a properly licensed plumbing contractor to correct.

1000 Janitorial:

The jobsite inspection found construction debris on the glass and frames. Correct by appropriate means.

6000 Woods and Plastic:

The jobsite inspection found the metal wrapped patio post is askew. Correct by appropriate means.

7000 Thermal and Moisture Protection:

The jobsite inspection found the plans calling for parapet caps but no parapet [caps] are installed. Correct/install the caps according to the plans and/or agreements.

9000 Finishes:

Plaster:

The jobsite inspection found the plans calling for expansion joints but there are no expansion joints. Correct/install the expansion joints according to the plans and/or agreements.

15000 Mechanical:

HVAC

The jobsite inspection found the plans calling for a balancing report. Contractor is to provide a report.

6. On August 17, 2012, Inspector Allen issued a second Corrective Work Order. The August 17, 2012 Corrective Work Order provided, in pertinent part, as follows:

This is the second corrective work order.

License # ROC 093152 issued to Primavista Homes Inc. has expired on 04/01/12 and cannot do or sub-contract the recommended corrective work listed in this directive. The only available remedy under this license status, if appropriate, would be financial settlement.

1. Allegation: An anti-siphon on water line that is in code violation. The jobsite inspection found a manual shut-off/anti- siphon valve located between the irrigation system and the house/main water line. Correct by appropriate means per International Residential Code P2902.5.3.

2. Allegation: A double door on east side of residence has a problem with the house settling issue. The jobsite inspection found the "fixed/pinned" door drags on the threshold when opening and closing. Correct by appropriate means.

3. Allegation: Puddling has again occurred on interior floor during this latest storm. The door faces east from kitchen entry (east wall). The jobsite inspection found that the homeowner caulked under/along the threshold. Another contractor has installed a screen system that allows water to be trapped on top of the threshold thus allowing water to enter the interior between the threshold and the sweep. No action required.

4. Allegation added during jobsite inspection: Master bath sliding door drags on the concrete floor. The jobsite inspection found the master bath sliding door dragging on the concrete floor when opening and closing. Correct by appropriate means.

7. Inspector Allen testified that he conducted a pre-hearing inspection on January 23, 2013, and inspected each item on the two Corrective Work Orders. Inspector Allen stated that he observed that Item Nos. 2, 3, 4, 5, 6, 7, 12, 1000 Janitorial, 6000 Woods and Plastic, 7000 Thermal and Moisture Protection, 9000 Finishes, and 15000 Mechanical on the July 10, 2012 Corrective Work Order had not been fully corrected by Primavista. Inspector Allen stated that he observed that Item No. 2 of the August 17, 2012 Corrective Work Order had not been fully corrected by Primavista. Inspector Allen testified that he did not know if Primavista had provided Complainant with a list of subcontractors as required in the July 10, 2012 Corrective Work Order.[1] 8. Philip G. Rosenberg (hereinafter “Mr. Rosenberg”) testified that he is the qualifying party for PGR Construction Inc.[2] Mr. Rosenberg stated that he performed an onsite inspection of Complainant’s residence and prepared a written report regarding the workmanship deficiencies he observed at Complainant’s residence.[3] Mr. Rosenberg testified that portions of his written report were incorporated into the first Corrective Work Order. Mr. Rosenberg stated that he concurred with Inspector Allen’s testimony. Mr. Rosenberg testified that his biggest concern was Primavista’s failure to provide Complainant with a complete list of all licensed subcontractors that had worked on Complainant’s residence. Mr. Rosenberg stated that the list of subcontractors was required to enable Complainant to contact the subcontractors directly.[4]

9. Primavista’s qualifying party, Christos Vlachopouliotis (herein after “Mr. Vlachopouliotis”), testified that Complainant’s residence was a spec house that was not built specifically for Complainant. Mr. Vlachopouliotis acknowledged that he had not provided a complete list of subcontractors to Complainant.[5] 10. Complainant testified that Primavista was not responsive to his concerns regarding construction deficiencies on his residence. Complainant stated that he repeatedly asked for a list of subcontractors and that Mr. Vlachopouliotis always responded that Complainant should contact him rather than the subcontractors. Complainant acknowledged that his residence was partially completed when he entered into a purchase agreement with the developer identified as San Francisco One. Complainant testified that Mr. Vlachopouliotis owned San Francisco One. Complainant stated that Primavista failed to fully comply with the terms of the Corrective Work Order. 11. Complainant stated that Primavista failed to comply with approved plans and specifications by failing to install Paint Lok galvanized flashing caps on the parapets and by failing to install expansion joints in the exterior of his residence. Complainant testified that the postal service has complained about the loose gravel in front of his residence. Complainant acknowledged that the electrical work had been completed and that the coating on his roof had been corrected.[6] 12. Richard Francione (hereinafter “Mr. Francione”) testified that he is a general contractor that specializes in window and door installation.[7] Mr. Francione stated that he installed the doors and windows in Complainant’s residence. Mr. Francione testified that the rubber pieces at the bottom of the doors are called “wiper blades” and are not necessary. Mr. Francione stated that he usually removes them from the doors that he installs.[8] 13. Mr. Vlachopouliotis testified that Complainant’s residence is located in a small four-unit development. Mr. Vlachopouliotis stated that Complainant’s residence was constructed much like the other houses constructed in the development. Mr. Vlachopouliotis testified that none of the houses were constructed with parapet caps or expansion joints. Mr. Vlachopouliotis stated that since Complainant’s residence was a spec house, Primavista did not have to follow approved plans and specifications. Mr. Vlachopouliotis testified that Complainant’s residence was constructed in accordance with all applicable code requirements. Mr. Vlachopouliotis stated that he did not want to release a complete list of subcontractors that Respondent hired to construct Complainant’s residence because he wanted to maintain control over the process.[9] 14. Administrative notice is taken of Primavista’s prior license record as reflected on the Registrar of Contractors’ public website on February 8, 2013. Such prior license record reflects that License No. B.093152-R of Primavista expired on April 1, 2012, was suspended for lack of bond on March 6, 2012, and was suspended for non-renewal from April 1, 2011, through March 31, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Complainant has not borne his burden to establish that Primavista abandoned or refused to perform work on his residence. This Tribunal concludes that there is no violation of the charged provision of A.R.S. § 32-1154(A)(1).[10] 4. Primavista failed to follow approved plans and specifications by failing to install expansion joints in the exterior of Complainant’s residence and by failing to install metal parapet caps. This Tribunal concludes that Primavista violated the charged provision of A.R.S. § 32- 1154(A)(2).[11] 5. Complainant’s residence has stucco cracks that are wider than 1/16” and gaps of up to ¼” between the stucco and the metal porch lid, the gate locking mechanisms are not complete and do not operate properly, there is excessive gravel in front of the residence, there is construction debris on Complainant’s windows and glass door, and no HVAC balancing report has been provided to Complainant. This Tribunal concludes that Primavista violated the charged provision of A.R.S. § 32-1154(A)(3),[12] namely, A.A.C. R4-9-108.[13] 6. Primavista failed to fully comply with the terms of the Corrective Work Order. This Tribunal concludes that Primavista violated the charged provision of A.R.S. § 32-1154(A)(23).[14] RECOMMENDed order In view of the foregoing, it is recommended that License No. B.093152- R of Primavista shall be revoked on the effective date of this Order unless the Registrar of Contractors receives and accepts written proof that Primavista has fully complied with the terms of the written Corrective Work Order. It is further recommended that if on or before the effective date of this Order, Respondent fully accomplishes the above described corrective action, then the above-provided License revocation shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Primavista pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Primavista to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Primavista’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Primavista, 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 this 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 the certification. Done this day, February 11, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/24/13 Hearing Record (hereinafter “H.R.”) at 13:54-56:07. [2] Administrative notice is taken of PGR Construction Inc’s prior license record as reflected on the Registrar of Contractors’ public website on February 8, 2013. Such prior license record reflects that License No. B.055609-R of PGR Construction Inc is current. [3] See Exhibit No. C-1 (5/16/23 PGR Construction Inc Inspection Report). [4] H.R. at 57:57-2:06:29. [5] H.R. at 2:07:30-2:19:14. [6] H.R. at 2:19:38-3:01:54. [7] Administrative notice is taken of Desert Specialties Inc’s prior license record as reflected on the Registrar of Contractors’ public website on February 8, 2013. Such prior license record reflects that Richard Charles Francione is listed as the qualifying party for Desert Specialties Inc. License No. B.138984-R of Desert Specialties Inc was suspended for non-renewal on November 1, 2010 through December 14, 2010. Desert Specialties Inc is not able to contract with this license at this time. [8] H.R. at 3:02:00-3:11:53. [9] H.R. at 3:12:22-3:58:04. [10] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [11] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [12] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [13] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[14] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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