ALJDEC decisions subject to certification as final

2019A-05554-CHC-ROC · Registrar of Contractors · 2020-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kenneth Lee McAlister,

COMPLAINANT

Nu Wavz Homes LLC,

License No. ROC 188086, 293730,

RESPONDENT

No. 2019A-05554-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2020

APPEARANCES: Complainant, Kenneth Lee McAlister, appeared via Google Meet. Daniel Johnson appeared for Respondent, Nu Wavz Homes LLC, also via Google Meet. Alberto Bernal appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Nu Wavz Homes LLC (Respondent) is the holder of License Nos. 188086, 293730 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 9, 2018, Kenneth Lee McAlister (Complainant) signed a contract with Respondent for a new home build.

On or about November 4, 2019, the Registrar received a Complaint containing thirty-six (36) items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Alberto Bernal. The initial inspection was performed on December 19, 2019.

Investigator Bernal then issued a written directive on or about January 6, 2020, for 16 out of the 36 items to Respondent. The written directive 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 January 27, 2020.

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

Complaint Item 2: Visible light through weather strip exterior door from garage to patio

Investigator’s Observation: I observed that the weather stripping was not sealing the door opening correctly. Day light was noticeable between the door jamb and the door while I was inside the garage with both the garage and service door closed.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 3: Wall not straight in excess of 1/2" bow.

Investigator’s Observation: After placing a straight edge the bedroom interior north side wall I observed a 1⁄2” bow in on the wall in 4’ between the straight edge and the wall at the bottom plate height. (I placed the level up against the Molding /running board height) (ben and Daniel bedroom). Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 6: Bath 1 and bath 2 tile damaged during 2nd rework of grout that had pin holes.

Investigator’s Observations: I observed that various tiles on the walls of both bathroom number #1 and #2 were scratched (damaged) After grout repairs were done on the bathroom shower walls.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 8: Garage stoop not to engineering drawings, Contractor verbally said he would fix.

Investigator’s Observation: The garage concrete stoop (garage service door) was poured flush with the garage concrete floor (slab). Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. Complainant and respondent agreed to lower the stoop approximately 1” to 1 1⁄2 “below finish garage floor to avoid and prevent water from going inside the garage, and grading issues near the ac units.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 11: Door hinges. Paint still on some and scratched from removing the paint

Investigator’s Observation: I noticed paint residue on various of the French door’s hinges. Also observed that various hinges were scratched at the same location. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 13: Door jam strikes, 90% miss located and then puttied up to try and fix.

Investigator’s Observation: I observed that various doors in the master bedroom, master bathroom and exterior door on the north side of the house had repairs done to the strike plate area but the finish work and the material used for the repairs was rough in texture compared to the existent surface around the plate area in every door. It is common practice to use filler material to do this type of repairs after adjusting the strike plates however, the filler material and paint has to be a closed match and be consistent in texture and color with the existing surface around it.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 15: Glass in exterior door window heavily scratched Investigator’s Observation: I notice that there were visible scratches on the glass window located on the upper part of the exterior door. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 20: Entertainment inside cabinet hole.

Investigator’s Observation: I observed a rectangular shape cutout hole inside the lower cabinet of the entertainment center on the back wall panel. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 21: Master bath cabinets excess holes in back of cabinets Investigator’s Observation: Extra holes where cut in the back panel of the two master bathroom’s cabinets. This holes were cut to match the plumbing lines, but the cutouts are in the wrong place and other holes had to be cut to fit the plumbing lines to the sinks. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 24: Bath 1 drain ring finish damaged during one of the tile grout rework operations

Investigator’s Observation: I noticed the drain ring (shower stopper and ring) were damage after repair work was done in the bathroom shower in bathroom #1. Shower ring and stopper were both discolored (no coating on it). Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 25: Paint light on some door jams at the rework area for the strike plates

Investigator’s Observation: I observed that various door throughout the house had been repaired around the strike plate as mentioned on complaint # 13. Touch up paint should cover the whole area that was repair and also match existing color.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 26: Some doors jams are cracked at the strike plate areas and filled to hide. I have pictures prior to repaint.

Investigator’s Observation: I observed that various doors in the master bedroom, master bathroom and exterior door on the north side of the house had repairs done to the strike plate area but the material used was rough in texture compared to the existent surface around it. It is common practice to use filler material to do this type of repairs after adjusting the strike plates however, the filler material has to be a closed match and be consistent in texture and color with the existing surface around it.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 32: Tile in master bath shower floor not straight. Was told by the builder it would not be grouted this way, yet it was.

Investigator’s Observation: This is the tile installed in the master bathroom shower. The Respondent stated that this tile comes in 12”x12” sheets, and I observed that the grout lines in various tiles was inconsistent and not straight. Nominal center of all joints should be straight and even width. See photo (32,33,34)

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 34: Tub spout in bath 1 and 2 not secured.

Investigator’s Observation: I noticed the spout in bathroom #1 was not secure. I observed that the spout was sealed with some kind of clear silicon that seemed to be flexible allowing the fixture to move. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 35: Bathroom door # 2 exterior needs adjustment. Investigator’s Observation: I observed that Bathroom # 2 exterior door needed to be adjusted. Top part of door rubs on door jamb when opening and closing. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complaint Item 36: Front door needs adjustment.

Investigator’s Observation: I observed that the front entrance door needed to be adjusted. Top right corner of the door rubs on door jamb when opening and closing. Respondent shall correct by the appropriate means. See photo (44)

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

On January 31, 2020, a Compliance Inspection was performed. In his Compliance Jobsite Inspection Notes dated February 25, 2020, Investigator Bernal noted that all directives but for Complaint Item 32, were now in compliance. The Notes provided as follows:

Complaint Item 32: Tile in master bath shower floor not straight. Was told by the builder it would not be grouted this way, yet it was.

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

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

With Complaint Item 32 still not in compliance with the directive, the Registrar issued a Citation against Respondent on or about February 26, 2020. The Citation charged Respondent with 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).

Mr. Bernal testified that based upon the report, some corrections were not made and the areas that had the incorrect lippage, still had the incorrect lippage, but did not recall exactly how many tiles did not meeting the 1/32 inch standard.

Mr. Bernal further testified that all other complaint items but for the shower tiles were handled in a professional manner.

Complainant testified that he allowed Respondent several opportunities to fix the shower tiling prior to and after the time had expired on the written directive.

Complainant provided testimony in which he opined that Respondent was less than truthful regarding other issues on the home, for example the cracked concrete on the driveway, as well as whether drywall was to be hung at a certain time.

Specifically as to the shower tile, Complainant testified that at the outset of the project, he requested that he lay the tile himself. Complainant alleged that Respondent would not allow him to complete the same because they did not want to be responsible if the installation was not of the appropriate quality.

On April 22, 2019, work commenced on the shower tile. Complainant testified that he sent a picture to Mr. Johnson of the initial work and mentioned that the tile was not straight. Mr. Johnson responded that the tile would not be grouted as the picture indicated and to “please allow them to finish”. Complainant also presented Exhibits 17 through 20, which were pictures of the tile prior to grouting.

Once Respondent finished the grouting on May 3, 2019, Complainant sent another text message with a picture of the finished product. The text message read, “[w]ell you said it would not get grouted that way and guess what? They did. Also there looks to be a low spot that might drain and puddle.” Complainant also presented Exhibits 23 through 25, which were pictures of the tile after grouting.

Next, Complainant offered Exhibits 29 through 72 into evidence. These exhibits are pictures of the present state of the shower tile after the purported fixes to the same. Complainant testified that even after the corrective work, the tiles were not straight or evenly gapped, mortar had come up, the grout was uneven, there was too much lippage, tiles were chipped, and there were pinholes in the grout.

Complainant testified that Respondent offered to pay a contractor of his choosing to repair the tiles, but when the bid came in, Respondent refused to do the same. Complainant also testified that he would not allow another sub-contractor or Respondent back to further repair the tiles after the deadline in the directive expired..

Finally, Complainant testified that he has paid the contract in full despite the incomplete shower work.

Mr. Johnson testified on behalf of Respondent that its goal was to make the customer happy, but there was a point in this project where there was no possibility of making Complainant happy. He also added that this job had an abnormal amount of issues.

Mr. Johnson testified that they attempted to fix the shower floor on many occasions and it was still his intention to make it right.

Mr. Johnson admitted that he rejected the bid that Complainant provided to fix the shower as it was for around $18,000, which he believed to be unreasonable. Mr. Johnson did however offer a different sub-contractor to come back to the property to fix the shower tiles.

Mr. Johnson further testified that he could not remember exactly when he personally went to the site to inspect the shower, but admitted that he never inspected the same personally once the corrective work was completed.

Further, Mr. Johnson testified that Reed Gifford, an employee of Respondent, was present during the corrective work and provided pictures to Mr. Johnson showing the completed repairs.

Next, Reed Gifford testified that he took pictures before and after the corrective work was completed. He further testified that he never made any determination if the work was done correctly.

Administrative notice is taken of Respondent’s prior License record on July 22, 2020. Such prior License record reflects that Respondent’s License No. 188086 was first issued on August 14, 2003, and is current. Such prior License record also reflects that there is one open complaint, namely the present complaint, and there are no prior complaints 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, as to the shower tiles, the work was not in conformity with the Registrar’s standards. The spacing was incorrect, there were pinholes in the grout, tiles were chipped the lippage threshold was exceeded, and the grout was uneven. 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 also established that Complainant allowed Respondent ample opportunities to correct the shower tile work yet it still was not completed satisfactorily to the Registrar’s standards. 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 Respondent’s License Nos. 188086, 293730 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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)(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.

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-137160-45720000Done this day, August 6, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000