ALJDEC decisions subject to certification as final
2019A-05554-RFA-LS-ROC · Registrar of Contractors · 2022-08-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kenneth Lee McAlister,
COMPLAINANT
v.
Nu Wavz Homes LLC
License No. ROC 188086,
RESPONDENT
No. 2019A-05554-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: July 22, 2022
APPEARANCES: Complainant Kenneth Lee McAlister appeared on behalf of himself. Dan Johnson appeared on behalf of Nu Wavz Homes, LLC. Assistant Attorney General Sarah Asta appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
On or about July 9, 2018, Complainant Kenneth Lee McAlister and
Respondent Nu Wavz Homes, LLC, entered into a residential remodeling contract for the amount of $511,305. See Exhibit 1.
On or about July 9, 2018, Nu Wavz started work.
On or about July 19, 2019, Nu Wavz stopped work.
4. On or about November 4, 2019, the Arizona Registrar of Contractors (the ROC) received a complaint from McAlister alleging poor work on the part of Nu Wavz. See Exhibit 1. In the complaint, McAlister alleged that the tile in the master bath shower was not straight. McAlister did not allege that Nu Wavz performed poor work on the master bath shower wall. See id.
5. On December 19, 2019, Investigator Albert Bernal conducted a job-site
inspection. See Exhibit 2.
6. On January 6, 2020, the ROC issued a Directive to Nu Wavz
wherein the ROC directed Nu Wavz to correct several items listed in the complaint, by appropriate means, no later than 5:00 p.m. on January 27, 2020. See Exhibit 3. The January 6, 2020 Directive provided in relevant part, 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.
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
.....................................................
7. On January 31, 2020, Investigator Bernal conducted a compliance job-site inspection. Investigator Bernal concluded that the only item that Nu Wavz had not appropriately corrected was Complaint Item 32. See Exhibit 4.
8. On February 26, 2020, the ROC issued a Citation to Nu Wavz.
Through the Citation, the ROC alleged that Nu Wavz had violated Ariz. Rev. Stat. §§ 32-1154 (A)(3) and (22); A.A.C. R4-9-108. See Exhibit 5.
9. On July 20, 2020, a hearing was conducted regarding the complaint and Citation.
10. On August 6, 2020, Administrative Law Judge Stone issued a decision concluding that Nu Wavz violated Ariz. Rev. Stat. §§ 32-1154 (A)(3) and (22); A.A.C. A.A.C. R4-9-108. Specifically, Judge Stone concluded that Nu Wavz violated Ariz. Rev. Stat. §§ 32-1154 (A)(3) and (22) because Nu Wavz failed to correct the shower tiles in a workmanlike manner.
11. On August 12, 2020, the ROC accepted the decision issued by Judge Stone.
12. On or about December 14, 2021, McAlister filed a claim for a payout from the ROC’s Recovery Fund (the Fund). McAlister requested $18,303.50 to repair Nu Wavz’s deficient work. See Exhibit 7. McAlister paid Nu Wavz a total of $574,880.41. See id.
14. McAlister submitted a bid from Home Solutionz with his claim.
The description of work provided on the Home Solutionz bid provided, “Remove and replace shower floor and walls. We will not do just the floor because we cannot warranty the walls will not leak. This is industry standard to not just do the floor. Walls need to be replaced also.” See Exhibit 12. The total amount of the bid from Home Solutionz to repair the shower floor and walls was $18,303.50. See id.
15. McAlister submitted a repair bid from Patriot Flooring. See Exhibit 13. The bid from Patriot Flooring provided in relevant part, as follows:
We will not repair just the floor. We cannot warranty the floor from any leaks as we do not know the condition of the walls behind the tile. From the way the floor tile is done and the several chips on the wall tils this has to be an entire repair not just a floor.
If we were to put a price just on the floor though we will not do just the floor we would put the price at 12,825.
16. McAlister submitted a repair bid from Rebath Master Shower (Rebath). Rebath explained in its bid that it could not repair the floor alone. See Exhibit 14. However, Rebath estimated the cost to repair the floor alone would be $12,649.00. See id.
17. Gail Matthews, ROC Legal Assistant II, reviewed the claim. Matthews calculated McAlister’s actual damages based on the bid from Patriot Flooring. Matthews did not consider the bid from Home Solutionz because the bid exceeded the scope of the Directive. The bid from Home Solutionz was for the repair for the shower wall and the shower floor. However, the Directive did not include the shower wall. In addition, the bid from Home Solutionz was not the highest bid. Matthews did not use the bid from Rebath because the bid did not include an ROC number. Moreover, Matthews could not confirm that Rebath was a licensed contractor. McAlister used the bid from Patriot Flooring because it was the lowest bid and it provided a price to repair the shower floor alone. Matthews concluded that McAlister’s damages were equal to the cost to repair the deficient work: $12,825.
18. On March 24, 2022, the ROC notified McAlister and Nu Wavz that McAlister would be awarded $12,825 from the Fund.
19. McAlister timely requested a hearing to contest the amount of the award.
20. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
21. A hearing was held on July 22, 2022.
22. At hearing, the ROC presented the testimony of Ms. Matthews. McAlister testified on behalf of himself.
23. McAlister contended that the award amount should include the cost to repair the shower walls in its calculation of his actual damages.
24. The ROC contended that its award amount of $12,825.00 was appropriate because the shower walls exceeded the scope of the Directive.
CONCLUSIONS OF LAW
Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).
Ariz. Rev. Stat. § 32-1132(A) provides, in relevant part, as follows:
An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.
The undisputed evidence presented at hearing shows that the Directive did not include the shower walls. Furthermore, the evidence presented at hearing does not show that the shower walls could not be repaired without repairing the shower walls. The evidence shows that the contractors would not repair the floor without repairing the wall because they could not guarantee that the walls would not leak.
The preponderance of the evidence shows that the actual damages suffered by McAlister as a direct result of Nu Wavz’s violation was $12,825. Complainant has not established that the ROC’s determination was improper.
Consequently, the ROC’s determination to award McAlister $12,825 from the Fund should be upheld.
ORDER
IT IS ORDERED that Kenneth Lee McAlister’s appeal is denied.
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 is forty days after the date of that certification.
Done this day, August 11, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
ROC of Contractors
By Miranda Alvarez
Legal Secretary
-54864001
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-137160-45720000Done this day, August 11, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
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-137160-45720000