ALJDEC decisions subject to certification as final

2021A-02244-CHC-ROC · Registrar of Contractors · 2022-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ambika Sohal,

COMPLAINANT

v.

Vibe Luxury Living LLC

License No. ROC 330017,

RESPONDENT.

No. 2021A-02244-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2022 and February 16, 2022

APPEARANCES: Complainant Ambika Sohal appeared on behalf of herself. Fabian Zazueta, Esq. appeared on behalf of Respondent Vibe Luxury Living, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On November 12, 2021, the Registrar of Contractors, (ROC),

issued a Notice of Hearing setting the above-captioned matter for hearing on December 14, 2021, by the Office of Administrative Hearings in Phoenix, Arizona.

Vibe Luxury Living LLC (Vibe) holds license number 330017 issued by the

ROC.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Vibe may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) section R4-9-108(a); A.R.S. section 32-1154(A)(22).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Vibe’s license.

5. On or about September 1, 2020, Complainant Ambika Sohal and Vibe entered into a new home construction contract.

6. On or about September 1, 2020, Vibe began work on Ms. Sohal’s home.

7. On August 6, 2020, Ms. Sohal and the builder completed a walkthrough of Ms. Sohal’s home. Ms. Sohal did not report at that time that the floor boards were deficient or unsatisfactory. See Exhibit 8.

8. Though a warranty report, Ms. Sohal reported that there were patches of a manufacturing defect on the wood floors. See Exhibit 12. Subsequently, Ms. Sohal and Vibe walked through the property and counted 35 boards that were deficient. See Exhibits C and E.

9. On December 14, 2020, Ms. Sohal expressed to Vibe through an e-mail that at least 70 boards needed to be replaced.

10. On or about January 7, 2021, Vibe began replacing floor boards in

Ms. Sohal’s home.

11. In January of 2021, Ms. Sohal expressed through a January 15, 2021 e-mail that Vibe was moving at a slow pace requested that Vibe postpone work until April of 2021. The January 15, 2021 e-mail provided, in relevant part, as follows:

Hi Dalton and Cisco, > > At the current rate of replacing the floor boards, I anticipate the work is this going to extend over a month+ when Dalton said it should take about a day. There are about 70 more boards to replace and last week, 6 were pulled up and 2 were replaced in an 8 hour day. I have used all of my time off with all of the other work that has been done and I have a deadline in April that I’m not going to make at this rate. Therefore I need you to reschedule work on the floors for April, after April 11th. I hope you can find a more efficient way to get this work done by then. I look forward to receiving your response by Wednesday January 20th.

> > Ambika

12. On or about January 16, 2021, Vibe stopped work on Ms. Sohal’s home.

13. On or about May 19, 2021, Ms. Sohal filed a complaint with the ROC alleging abandonment and poor workmanship on the part of Vibe.

14. On or about July 2, 2021, Investigator Maerker conducted a job-site inspection,

15. On July 22, 2021, Investigator Maerker issued a Directive to Vibe. The July 22, 2021 Directive provided, in relevant part, as follows:

The July 22, 2021 Directive provides, in relevant part, as follows:

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

Compliance Item: 1 - Several Floorboards were damaged by builder during home construction, which was noted on closing (9/1/20). Builder began to replace damaged, but did not show up at the agreed time to continue work and subsequently refused refused to complete the projects they initially agreed to. (Please see attached document "Summary of Work Agreement - Floors")

Investigator’s Observation: Several areas of what appeared to be tape adhesive adhered to the floor planks were observed, one floor board had what appeared to be drag marks on its surface. The Respondent did agree they had attempted to correct the issue but when they could not work with the complainants work schedule they were told they could not finish. The tiles should be corrected by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - When I moved into the house, I noticed that all of the tiles were dirty and they were extremely difficult to clean. I discovered that they were improperly cleaned upon installation, leaving grout haze on all tiles in the home. I submitted my concern to my warranty company on 9/21/2020 stating the haze needed to be removed from the tiles. This complaint was not something covered by the warranty and therefore Vibe did not correct it. I tried to remove most of it on my own, which required a massive amount of time, energy and effort as well as the additional financial in addition to my new home purchase. However there are still remaining patches of haze, which continue to attract dirt and cannot be cleaned with routine measures. (See item s-135 on page 10 of attached inspection report.) Investigator’s Observation: A haze was noticed on floor tiles on both the laundry room and mud room. The complainant indicated she had attempted to remove a large portion the haze, throughout the home, when asked if she had attempted in the areas shown to me during the inspection she advised she had not. The tile grout haze in areas not touched or modified by the complainant should be corrected by appropriate means

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - The Standing tub filler has been improperly installed. it is not secured to the floor and the cover does not fit flush to the floor, leaving a gap between the bottom of the cap. The tile immediately surrounding the the filler is cracked in multiple pieces, which occurred during installation by Vibe (See item s-164 on page 12of the attached inspection report.) The item is covered by my home warranty and they are required to correct this deficiency. (See attached home warranty letter dated 12/1/20 Item #64.) I called my representative at the home warranty company twice (4/12/21 and 4/23/21) to explain that have not yet corrected this deficiency. She said she would reach out to them both times to get an update on the holdup, but did not hear back from them either time. I called Taylor again on 5/14/21 and left a voicemail to get an on the status of this claim and still waiting to hear back. Investigator’s Observation: The fixture is loose at the floor and allows considerable movement. This item should be corrected by appropriate means

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 13 - Upon private home inspection, it was noted that that the soil/landscape is too high at walls in areas, leaving the stem wall not fully visible with faulty grading. (see item s-13 on page 3 of attached inspection report.) Additional weep screeds were noted to be improperly installed (see item s-33 on page 4 of attached inspection report). In addition paint is missing at several stem wall areas (see item s-39 on page 5 of attached inspection report). These items have yet to be corrected.

Investigator’s Observation: The weep screeds are installed correctly and there is very little reveal of the foundation, however the city of Phoenix did pass the grading of the property. Any areas of the stem wall left unpainted should be corrected by appropriate means

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner. Compliance Item: 14 - There are large gaps noted at several joints between trim and exterior walls that were noted on the home inspection (see items s-30 and s-35 on page 4 of the attached inspection report), which has yet to be corrected

Investigator’s Observation: Gaps were present between the fascia boards and a fascia board on the 2nd floor which is twisted. these items need to be corrected by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

16. The Directive was extended twice to August 30, 2021 and September 16, 2021.

17. On September 28, 2021, Investigator Maerker conducted a compliance job-site inspection. Investigator Maerker concluded that all of the Directive items had been corrected with the exception of Complaint Item 1. Investigator Maerker concluded, that there were still floor boards with glossy areas that Investigator Maerker believed were caused by an adhesive that was applied to the floor boards.

18. Vibe filed a timely answer to the Citation.

19. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

20. At hearing, Ms. Sohal testified on behalf of herself.

21. Investigator Maerker did not identify through the Directive the specific floor boards that were damaged. During the compliance inspection, Investigator Maerker did not observe all of the floor boards in Ms. Sohal’s home. Investigator Maerker informed the parties should determine the floor boards that required correction.

22. Ms. Sohal asserted that she did not damage her own floor boards.

Ms. Sohal contended that Vibe damaged her floor boards and failed to appropriately correct the boards.

23. Mr. Weber explained that Ms. Sohal continued to increase the number of defective floor boards. Mr. Weber contended that Vibe appropriately corrected the floor boards and that its work met minimum workmanship standards.

23. Vibe contended that it appropriately corrected the floor boards. Vibe contended that any damage beyond the initial 35 floor boards that were corrected by Vibe was not caused by Vibe. Vibe also contended that any remaining glossy areas were cosmetic.

24. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on March 8, 2022, Vibe’s license was first issued on July 30, 2020, and is active. Such prior License record also shows that there is only one open complaint against Vibe. Vibe’s license has never been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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. The Administrative Law Judge may consider the ROC’s administrative record. See Arizona Administrative Code § R4-9-118.

4. The evidence presented at hearing shows that Investigator Maerker did not

identify all of the specific planks that required repair. The number of defective floor boards increased from 35 to 70 boards. Vibe was not present in the home for almost four months before the complaint was filed. Upon consideration of the evidence presented at hearing, the Administrative Law Jude concludes that the record is insufficient to show that any remaining glossy areas observed by Investigator Maerker in his compliance inspection were the result of poor workmanship performed by Vibe. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). Moreover, the preponderance of the evidence does not show that the problems documented by Investigator Maerker were anymore than cosmetic.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this matter be dismissed.

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, March 8, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors