ALJDEC decisions subject to certification as final

2014A-1136-ROC · Registrar of Contractors · 2015-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2015 APPEARANCES: Complainant Anthony L. Vay appeared on his own behalf. Miguel Villafana, Owner and Qualifying Party, appeared on behalf of Respondent MV Builder LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent MV Builder LLC is the holder of License No. 271417 issued by the Arizona Registrar of Contractors (Registrar). On or about April 30, 2013, Complainant Anthony L. Vay entered into a contract with Respondent to remodel home to include, among other things, installing 3400 square feet of wood flooring, moving a kitchen, installing kitchen cabinets, and building a master shower. The total cost of the project was $64,850.00. As the project neared completion, Complainant became concerned with the work done. According to Complainant, certain items were either not completed or were not completed well. Specifically, Complainant was concerned with the wood flooring that was warping or coming up, kitchen cabinets installed improperly, and no exhaust was installed to vent the kitchen hood. On or about March 24, 2014, Complainant filed a Complaint with the Registrar alleging poor workmanship. The Registrar assigned the complaint to Investigator Beau Cruz. On or about May 20, 2014, after a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

License # 271417 issued to MV Builder LLC is a classification # K-61 Carpentry, Remodeling and Repairs and is not appropriate to complete part or all of the work listed below. Work must be completed by an appropriately licensed contractor. __________________________________________________________

Interior

Improper Application of Engineered Wood Floors • Wood floors installed improperly/warping: Cupping, warping and delamination occurring around entire front entry area, and extending into Grand Room of about 150s.f. in diameter. Area encroaches to the left of entry towards the E end of the Kitchen Island and to the right E side of front entry and N bordering at border of Bar Counter area from column to the E towards living room area. • Wood floors are delaminating: Delamination on numerous planks in area mentioned in 1st bullet point. • End and side joints between wood planks area excessive: Excessive joints and side joint between planks in area mentioned in Complaint #1. • Hollow sounds noted below planks: Hollow voids below several planks to right (E) of column by bar area.

Cabinets

Cabinets Installed Improperly • Kitchen Island: Three (3) drawers on W side of Island, the soft close function does not work properly, drawers bind and middle drawer is completely off the tracks. Ten (10) of the eleven (11) of the sink counter base cabinet drawers, the soft close function does not work properly. Two (2) drawers (upper and middle) to left of sink are completely of the tracks. • 1st Master Bathroom: Middle vanity drawer does not close properly, and warped vanity door to left of left (E) vanity sink. • 2nd Master Bathroom: Middle Drawer is sitting crooked and loose handles on false drawer fronts. • Front Guest Bathroom: Two (2) drawers between vanity sinks (upper and middle) are completely of the tracks.

Bathroom Tile Walls

1st Master Bathroom tub and shower wall tiles • Crooked out of line tiles: Crooked out of line tiles throughout tile walls of tub and shower walls. • Irregular grout joints: Irregular grout joints with uneven grout application throughout tile walls. • Irregular grout lines: Irregular grout lines throughout tile walls. • Grout Discoloration: Discoloration of grout joints throughout tile walls. • Uneven Tiles: Uneven tiles on the upper left corner of tub wall, upper right corner of shower wall, and throughout tile walls. • Omitted bulldozing tile around fixed widow: It is common industry practice to install bullnose tiles are installed around all exposed borders, not only for aesthetic reasons but for safety. The outer border tiles as installed present a potential safety hazard.

2nd Master Bathroom tub and shower wall tiles • Crooked out of line tiles: Crooked out of line tiles throughout tile walls. • Irregular grout joints: Irregular grout joints with uneven grout application throughout tile walls. • Irregular grout lines: Irregular grout lines throughout tile walls. • Grout Discoloration: Discoloration of grout joints throughout tile walls. • Uneven Tiles: Uneven tiles on the lower corner wall, upper corner wall, and throughout tile walls.

Front Guest Bathroom: • Crooked out of line tiles: Crooked out of line tile throughout tile walls. • Irregular grout joints: Irregular grout joints with uneven grout application throughout tile walls. • Irregular grout lines: Irregular grout lines throughout tile walls. • Grout Discoloration: Discoloration of grout joints throughout tile walls. • Uneven Tiles: Uneven tiles on the upper lower corner wall and upper corner wall, and throughout tile walls.

Rear Guest Bathroom: • Crooked out of line tiles: Crooked out of line tile throughout tile walls. • Irregular grout joints: Irregular grout joints with uneven grout application throughout tile walls. • Irregular grout lines: Irregular grout lines throughout tile walls. • Grout Discoloration: Discoloration of grout joints throughout tile walls. • Uneven Tiles: Uneven tiles on corners of tile walls, and throughout tile walls.

Exterior

• Faulty foundations and front columns: Insufficient concrete noted under the stucco columns supporting the roof under front entry porch/patio area. Due observations noted under the two front columns, it is this investigators opinion, that respondent is responsible for exposing area below columns to ensure that proper footings have been provided under the columns, and to ensure that the stem area be properly finished in a professional and workmanlike manner.

Stucco

• Cracks in the stucco on both side of kitchen window and below window opening: Cracks in the stucco outline covered door and window openings to right (E), left (W), and below kitchen window. • Crack between CMU gate column and Garage: Large vertical jagged joint crack running from top to bottom where CMU gate fence post adjoins garage surface, starting from the bottom crack that is 1/16 of an inch, towards the top of the post to in excess of 3/16 inch with compound cracking noted and missing stucco noted. Contractor should determine the cause of the crack and make necessary repairs.

The Registrar has determined that any workmanship violations alleged in the compliant but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make any attempts to do any corrective work. On or about July 2, 2014, Investigator Cruz performed a compliance inspection at which time he determined Respondent had not performed any corrective work. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). Complainant testified that after the Registrar completed its investigation, he hired a different contractor to repair the problems and complete the project without any problems. Complainant has since sold the property. Investigator Cruz testified that there appeared to be moisture on the back of the wood flooring. If Respondent failed to perform a moisture test prior to installation, Respondent is responsible for the failure of the flooring. Investigator Cruz also stated that the soft close mechanisms of the kitchen cabinets were not working properly. As to the tile shower installation, Investigator Cruz testified that the tiles were crooked, with irregular grout lines, different color grout throughout, and excessive lippage on the floor of the shower. Investigator Cruz also noted that Respondent did not install bullnose tiles in areas where such tiles would normally be used for safety reasons. Complainant testified that Respondent completed the project in September 2013, but that based on the work performed, he was not comfortable listing the house for sale at that time. After filing the complaint, Complainant hired another contractor who completed the work in August 2014. Specifically, Complainant testified that the new contractor performed a moisture test on the concrete and installed a water barrier and that, following installation of the new flooring, there has been no problem with warping. Mr. Villafana testified that Respondent could not be held responsible for the defect with the kitchen cabinets resulting in the soft close mechanism not working because it did not build the cabinets and only installed them. Mr. Villafana acknowledged that there were problems with the tile installation and offered to have Complainant find someone else repair the problem and reduce the final payment by the amount paid to the other contractor. Mr. Villafana testified that Complainant withheld $7000.00 from the final payment to account for the tile, but that was an excessive amount to withhold. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 14, 2015. Such prior License record reflects that Respondent’s License No. 271417 was first issued on March 10, 2011, had been suspended from April 10, 2014, through May 19, 2014, for lack of bond, and is current. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation 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 Vazanno 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). 3. Complainant established by a preponderance of the evidence that Respondent’s performance of the work required under the contract was not in compliance with the Registrar’s standards as demonstrated specifically by the wood flooring and the tile shower installation. Therefore, the evidence established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[1] 4. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend MV Builder LLC’s License No. 271417 for a period of two days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, December 21, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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