ALJDEC decisions subject to certification as final

2019A-05182-CHC-ROC · Registrar of Contractors · 2020-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Leslie J. Baker,

COMPLAINANT

Novus Construction Group, LLC,

License No. ROC 296906,

RESPONDENT

No. 2019A-05182-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 24, 2020

APPEARANCES: Complainant Leslie J. Baker appeared on her own behalf. Complainant’s husband, Matthew Baker, was also present. Steve Slater and Nathan Slater appeared on behalf of Respondent Novus Construction Group, LLC. Registrar of Contractors Investigator Albert Bernal was present. Guy Loisi appeared as a witness for Complainant.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Novus Construction Group, LLC (Respondent) is the holder of License No. 296906 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 3, 2019, Leslie Baker (Complainant) entered into a contract with Respondent for Respondent to remodel the master and hall bathrooms and construct an addition to her home. See Administrative Record, page 183. The contract price was $85,000.00. Id. Complainant has paid Respondent $60,000.00.

Complainant and her family rented a temporary residence in which to reside while the work was performed. The work began on June 11, 2019, and was estimated to be completed within three months. Complainant moved back into her home on October 5, 2019, however, the work was not yet complete.

On or about October 16, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Albert Bernal. Investigator Bernal conducted a jobsite inspection on November 8, 2019. After a jobsite inspection, Investigator Bernal issued a Written Directive dated December 10, 2019, to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. 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 December 30th, 2019.

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: We were told project would take 3 months tops. We moved out June 11, 2019 moved back in 10/5/2019. Job included remodel of hall and master bath with master bedroom extension. Not done to date.

Investigator’s Observation: At this JSI I observed that the work scheduled to be done at the master bedroom extension, master bathroom, and half bath was not finished. Shower glass door were not installed, and shower glass was not secure. Also sinks that were contracted to be installed had to completed and functioning properly. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 6: Extreme concerns with addition because it does not sit on the foundation that was poured He left a lip around the exterior which I saw flood during a rain storm, soaked the foundation cement and the wood framing.

Investigator’s Observation: I observed that the framed walls of the structure were sitting on the concrete slab (foundation)1’ in on the left side, and 1” to 1” 1⁄2 in on the back wall. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 8: Bathroom sinks in hall bathroom leak because hooked up with the wrong size plumbing.

Investigator’s Observation: I observed that the plumbing was installed under the sink and there were towels placed under it inside the cabinet. I was unable to determine that the plumbing was the wrong size. All sinks that were part of the contract should be properly installed and functioning. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 9: Both showers have no sealed glass or glass doors. Glass installation will not be able to be sealed

Investigator’s Observation: I observed that the installation of the shower glass (in both Bathrooms) was not Completed. The glass was installed but not sealed and glass doors were not installed. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 10: Closet not completed, even at a basic level

Investigator’s Observation: The closet didn’t have any type of structure built within it that could be used to hang or place clothing or other articles. Complainant stated that the closet was not finished and respondent agreed to the statement. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 11: Broke our light no light in closet.

Investigator’s Observation: At the time of this inspection I noticed that there was no light in the closet. Complainant showed me the closet and commented that there was not light in the room. I asked Respondent if he agreed to the complaint allegation and he replied yes.

. . . .

Complaint Item 12: hole in the wall in the hallway, just left it.

Investigator’s Observation: At the time of this investigation I observed that there was a repair (Patch) on the drywall in the hallway wall. Respondent agreed to the allegation and stated that they were going to fix it and finish it.

. . . .

Complaint Item 14: Stucco is the wrong pattern outside and under the roof is open to the elements, not completed.

Investigator’s Observation: The stucco texture or pattern that the Responded applied to the room addition walls was matching the existing texture of the rest of the house however, the area under the wooden soffit on the right side of the house was not finished and it was expose to the elements, this specific area “under the roof is open to the elements” mentioned on this complaint allegation has to be finished. Respondent

shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 15: Plumbing for master sinks not done and fixtures not attached to the wall properly

Investigator’s Observation: The sink on the right side in master bathroom was not functioning, the plumbing installation was never completed. I then asked the Respondent if he agreed to this allegation and he replied yes. Sinks and fixtures have to be installed, secured and working properly. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

Complaint Item 16: Grading in the back yard needs to be completely redone directing water away from the house.

Investigator’s Observation: The grading around the new addition to the house was not sloping away from the concrete slab (Foundation). Slope pitch should be set to move water away from the concrete slab to avoid water ponding and moisture. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

. . . .

After the deadline in the Written Directive expired, Complainant notified Investigator Bernal that the corrective work was not complete. Complainant requested another jobsite inspection and added another item to the Complaint, specifically regarding a leak in the hall bathroom. Complainant filed an addendum to the Complaint and a second jobsite inspection was conducted on December 26, 2019.

After the second jobsite inspection, Investigator Bernal issued another Written Directive dated January 16, 2020, to Respondent that provided as follows:

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Addendum: master shower plumbing leaking - ceiling damaged

Investigator’s Observation: I did not notice any water leaks in the master bathroom shower ceiling area or in the master bathroom ceiling area however, I noticed a bubble in the drywall area by the fan in the master bathroom ceiling that has to be corrected.

. . . .

Complaint Item 3: Master Bathroom:

- Electrical in two cabinets not completed (4 switch installed)

- Install scribe to finish the cabinets in two places. I had purchased custom scribe and Steve used it on something else. So he must purchase as well along with custom piece of hall bathroom cabinet.

- Right side vanity countertop falling down and needs to be fixed and then re-caulked.

Investigator’s Observations: Item # 1 and item # 2 of this complaint I am unable to verify that the Respondent is responsible for the work or the material. The last item of this complaint item “Right side vanity countertop falling down and needs to be fixed and then re-caulked” This last in this complaint is describing the back splash piece on the right side of the cabinet. This item was listed in the first written directive and it has to be corrected.

. . . .

Complaint Item 6: My block wall was taken down and left open. We have a pool so this is illegal. I asked that a gate (that I have purchased) be installed instead of putting the block wall back up.

Investigator’s Observation: I observe that block wall was missing on the right side or residence. Respondent stated at the Jobsite inspection that the section of wall had to be remove to have access to the backyard. Respondent shall correct by the appropriate means.

. . . .

After the January 16, 2020 Written Directive was issued to Respondent, the Town of Fountain Hills conducted a Final Inspection of the project on March 2, 2020. The work failed inspection. Thereafter, Complainant filed a second Addendum to the Complaint that included items from the failed Town of Fountain Hills Final Inspection. Investigator Bernal conducted a third jobsite inspection on April 2, 2020, and issued a third Written Directive to Respondent on April 6, 2020, that provided as follows:

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 reasons1, 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:

Compliance Item: 1 - Addendum: master shower plumbing leaking - ceiling damaged

Investigator’s Observation: I did not noted any water leaks in the master bathroom shower ceiling area or in the master bathroom ceiling area however, I noted the repair done to the drywall texture in the ceiling area by the exhaust fan is inconsistent, and it needs to be corrected.

. . . .

Compliance Item: 2 - Right side vanity countertop falling down and needs to be fixed and then re-caulked.

Investigator’s Observation: I noted that the right side of the counter top caulking line was cracked. Respondent shall correct by the appropriate means. Also noted that the left side top drawer in the same vanity is not working properly and it can’t be open.

. . . .

On May 7, 2020, Investigator Bernal conducted a Compliance Inspection and on May 21, 2020, issued his Compliance Jobsite Inspection Notes as follows:

I communicated with the Complainant and Respondent to find out if any work was completed. Complainant and Respondent both stated that there was work done to grading and the clean outs outside of the property. The rest of the items listed on the directive had not been corrected at this time. At the time of the Compliance inspection I only took pictures of the grading that was partially corrected and also took pictures of the clean out caps that were fully corrected.

Compliance Findings:

Compliance Item: 1 - Addendum: master shower plumbing leaking – ceiling damaged

Investigator’s Observation: I did not note any water leaks in the master bathroom shower ceiling area or in the master bathroom ceiling area however, I noted the repair done to the drywall texture in the ceiling area by the exhaust fan is inconsistent, and it needs to be corrected.

The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 2 - Right side vanity countertop falling down and needs to be fixed and then re-caulked.

Compliance Item: 3 - Insulate attic access panel.

Investigator’s Observation: I observed that the attic panel was not insulated. The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 4 - Complete elec trim for light in attic near access.

Investigator’s Observation: I noted the electric trim from the light was not finish in the attic. there was not light or switch. The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 5 - Properly flash bottom of stucco system to foundation interface to prevent water infiltration at areas where plane of finish stucco is behind/back of edge of foundation

Investigator’s Observation: I observed that the framed walls of the structure were sitting on the concrete slab (foundation) 1’ in on the left side, and 1” to 1” 1⁄2 in on the back wall. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 6 - Provide min 6" of fall within the first 10' of the building for drainage.

Investigator’s Observation: I noted the grade was cut approximately 10 feet out from the house stem wall where there was enough room. However, there were big rocks and loose dirt throughout the whole area indicating that it did not get finish graded. I also observed that grade was not sloping away from the stem wall as it should be to provide fall and move water away from the concrete slab (stem wall) to avoid water ponding and moisture. I noted piles of dirt and rocks stocked pile in the back yard.

The Respondent did not comply with this directive item. Directive has not

been fully complied with.

Compliance Item: 7 - Cut off cap 2-way clean-out flush with finish grade.

Investigator’s Observation: I noted that the 2 way clean out caps where cut and flush with the grade.

Directive has been complied with by Respondent.

Compliance Item: 8 - Caulk toilet (s) to flooring.

Investigator’s Observation: I noted the toilet(s) were not caulked to the flooring. The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 9 - Complete electrical J- boxes under master and hall bathroom. Vanities.

Investigator’s Observation: I noted that the J-boxes were not completed under the vanities of the master bathroom and guest/hall bathroom.

The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 10 - Install vacuum breaker on hose bib.

Investigator’s Observation: I noticed the hose bib in the back wall of the new construction did not have a vacuum breaker. The Respondent did not comply with this directive item. Directive has not been fully complied with.

Compliance Item: 11- Hole in the wall in the hallway, just left it.

Investigator’s Observation: I observed a hole in the drywall in hallway wall located towards the bottom, and also a patch (repair) located towards the top of the back wall near to door leading to back yard. Respondent should properly refinish drywall texture areas as closely as possible to existing texture. The Respondent did not comply with this directive item. Directive has not been fully complied with.

The Respondent did not fully comply with this Directive. This case will be sent to the ROC Legal Department for further action.

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 and A.R.S. § 32-1154(A)(22).

Investigator Bernal did not conduct a prehearing inspection. At hearing, Investigator Bernal testified consistently with his findings contained in the Written Directives and Jobsite Compliance Inspection Notes. Investigator Bernal testified that Respondent completed corrective work to some of the Complaint items and that the items contained in the Compliance Jobsite Inspection Notes are the items that remain to be corrected.

Complainant testified regarding the exhibits that she submitted, primarily the photographs that illustrate the poor workmanship delineated in the Written Directives. Complainant submitted into evidence an estimate from Arizona Total Home Restoration in the amount of $18,970.00 to perform the corrective work that Respondent was ordered to perform and did not.

Complainant presented the testimony of General Contractor/Consultant Guy Loisi. Mr. Loisi testified that the work performed by Respondent was not completed per plans, nor was it completed in a timely manner. Mr. Loisi further testified that Respondent destroyed Complainant’s backyard, the framing of the addition hangs over the foundation, there are safety hazards present, including electrical issues in the attic and under the vanities, and the fascia and soffits “do not line up properly.” Mr. Loisi opined that the “biggest issue” is regarding the overall craftsmanship of the project.

Steve Slater, Respondent’s owner, testified that Respondent was not able to finish the project because Complainant would not allow Respondent to complete the work. Mr. Slater testified that the project took longer than anticipated and then Complainant “locked them off the job” in October 2019. Consequently, Respondent could not access the jobsite. Mr. Slater asserted that there was no provision for a completion date contained in the contract. Mr. Slater explained that the project was not a simple remodel of the bathrooms, but rather a complete gutting of the bathrooms and reconfiguration. Mr. Slater asserted that Complainant continually made additions to the contract and that Respondent did not install the cabinetry or the countertops. Mr. Slater expressed that he feels badly that there remain items that need to be addressed, that attempts were made, and that COVID-19 made completing the work in the Written Directives difficult.

Administrative notice is taken of Respondent’s prior License record on July 28, 2020. Respondent’s License No. 296906 was first issued on March 23, 2015, and is currently active. Such prior License record also reflects that there are no other open complaints and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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).

The evidence established that Respondent’s work identified in the Written Directives was not in conformity with the Registrar’s standards. This work includes but is not limited to the framing of the addition, the plumbing, the closet, the electrical work, and grading. Respondent acknowledged some of these deficiencies. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directives. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for seven (7) days Respondent’s License No. 296906.

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(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 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)(7), 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.

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-137160-45720000Done this day, August 10, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000