ALJDEC decisions subject to certification as final

2012A-1674-ROC · Registrar of Contractors · 2012-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2012, at 8:00 a.m. APPEARANCES: Catherine Christensen and Stephen Christensen (hereinafter “Complainants”) appeared through Stephen Christensen. Burrows Construction and Remodeling LLC (hereinafter “Burrows”) appeared through its qualifying party and member, Stephen Gary Burrows. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Burrows is the holder of License No. B.128793-R issued by the Registrar of Contractors. 2. This is a residential matter where Burrows performed remodeling work on Complainants’ residence. 3. Complainants were dissatisfied with Burrows’ workmanship and complained to Burrows. When Burrows failed to correct its work to their satisfaction, Complainants filed a formal Complaint against Burrows with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection. Inspector Grochocki issued a written Corrective Work Order on April 20, 2012, directing Burrows to perform designated corrective work on Complainants’ residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Note: Jobsite found plumbing and electrical work done on this project that required a building permit. Contractor to obtain building permit and obtain and pass all required inspections of local building authority. Contractor to hire properly licensed subcontractors to perform this work.

Jobsite inspection confirmed poor workmanship on all of the following complaint items; contractor to correct all by appropriate means:

1) Kitchen cabinets:

A) Under cabinet lights wiring exposed, rough holes

B) East upper skin on left nails coming through, rail loose, wood splitting, doors not aligned, cabs not level

C) East lower cab not finished behind oven, drawer on left damaged, trim damaged

D) Pantry bowed, cracked by screws, door uneven, bowed on right

E) [Refrigerator] cab split by screws, trim poor nailing, uneven, not to floor

F) West upper cabs not level, rail loose, poor fit and caulk, [over nailed], unfinished backs, crown poorly fit

G) West lower cabs, poor fit and caulk, not level

H) Island top not level, rough overhang, tile uneven

I) Laundry area crown poorly fit, split around screws, shelves and door poor fit

J) Trim around garage door poor fit

K) New window installed exterior seal

L) Cabs in dining room poor fit, bulge in wall, switch poor fit

2) Bar area uneven tile, trim over nailed, cracking, poor fit of trim both sides

3) Office area top not fit, crown poor fit, wiring exposed, trim and molding poor fit

4) Guest bath uneven tile, plumbing needs inspection by local [building] authority, paint on doors poor

5) Master bedroom poor painting on doors and wall, trim poor

6) Master bath uneven tile, broken corners

7) Concrete cracks not sealed

8) No hood vent

9) No backsplash

10) Office area no base

11) Den tile not grouted or sealed

12) [Refrigerator] dented

*The following complaint items added at jobsite:

13) Scratched stove

14) Screw through wall

6. Inspector Grochocki testified that no pre-hearing inspection was performed because Burrows had not performed any corrective work on Complainants’ residence. Inspector Grochocki stated that all of the items set forth in Complainants’ Complaint required corrective action.[1] 7. Inspector Grochocki testified that Burrows performed plumbing and electrical work at Complainants’ residence that required a building permit.[2] Inspector Grochocki stated that Burrows was not licensed to perform electrical and plumbing work. Inspector Grochocki testified that no inspections were performed by the local building authority and that Burrows had failed to obtain approval from the local building authority for the electrical and plumbing work that it performed at Complainants’ residence.[3] 8. Inspector Grochocki testified that he confirmed that all of the complaint items in the Complaint failed to comply with applicable workmanship and industry standards. Inspector Grochocki stated that Burrows informed him that it would be canceling its license and closing its business rather than complying with the Corrective Work Order.[4] 9. Catherine Christensen (hereinafter “Mrs. Christensen”) testified that she had given Burrows’ employees cookies and refreshments at her residence during the construction project and gave one employee a present for the employee’s new baby. Mrs. Christensen denied that she had ever screamed or yelled at Burrows’ employees. Mrs. Christensen stated that she thought Complainants had a pleasant working relationship with Burrows’ employees.[5] 10. Mrs. Christensen testified that Burrows’ workmanship at her residence was not of the quality that she had expected. Mrs. Christensen stated that Burrows was very disorganized and left open electrical wires exposed in her kitchen. Mrs. Christensen testified that the dishwasher that Burrows installed leaked and had to be repaired.[6] 11. Mrs. Christensen’s testimony is found to be credible. 12. Stephen H. Christensen (hereinafter “Mr. Christensen”) testified that Burrows’ construction work on Complainants’ residence “started out poor and ended poor.” Mr. Christensen stated that Burrows’ workmanship at Complainants’ home was very poor.[7] 13. Mr. Christensen stated that Burrows assured Complainants that Burrows could properly perform electrical and plumbing work at Complainants’ residence. Mr. Christensen testified that he was very concerned about the safety of the electrical and plumbing work that Burrows had performed at Complainants’ residence. 14. Mr. Christensen testified that none of the plumbing and electrical work performed by Burrows had been inspected and approved by the local building authority. Mr. Christensen stated that Complainants had been informed that much of the exposed electrical work and plumbing work failed to comply with applicable code requirements. Mr. Christensen testified that he was afraid that much of the covered plumbing and electrical work also did not comply with applicable code requirements and presented a possible safety hazard. 15. Mr. Christensen testified that Burrows’ work on Complainants’ kitchen cabinets was very poor and unworkmanlike. Mr. Christensen stated that he did not believe that Mr. Burrows was capable of fine cabinetry work. Mr. Christensen testified that Complainants were frustrated but that working conditions at Complainants’ residence were always good. Mr. Christensen stated that he often had to clean up after Burrows’ employees.[8] 16. The photographs presented by Mr. Christensen substantiated that Burrows damaged Complainants’ cabinets during the installation process.[9] 17. Burrows’ qualifying party and member, Stephen Gary Burrows (hereinafter “Mr. Burrows”) acknowledged that “it was a bad job and did not go well.” Mr. Burrows testified that he supported allowing Complainants access to the Residential Contractors’ Recovery Fund to correct Burrows’ poor workmanship on their residence. Mr. Burrows testified that Burrows made no effort to comply with the terms of the Corrective Work Order. Mr. Burrows stated that Burrows failed to perform any of the directed corrective work because Burrows lacked the financial ability to perform any corrective action. Mr. Burrows testified that he felt that the best thing would be for Burrows to give up its license and to allow Complainants access to the Residential Contractors’ Recovery Fund so that the construction work in their residence could be corrected to Complainants’ satisfaction.[10] 18. Mr. Burrows acknowledged that Burrows had performed electrical and plumbing work on Complainants’ residence without required construction permits from the local building authority. Mr. Burrows testified that he thought that Burrows could perform electrical and plumbing work under Burrows’ License No. B.128793-R.[11] 19. Mr. Burrows acknowledged that Mrs. Christensen had provided cookies at the jobsite. Mr. Burrows testified that conditions were acceptable through most of the job. Mr. Burrows stated that at the end of the construction project, there was a “lot of yelling” and his workers were unwilling to work at Complainants’ residence.[12] 20. Mr. Burrows testified that Burrows “ran” the gas lines on Complainants’ roof. Mr. Burrows acknowledged that a permit was required for such work and that Burrows failed to obtain the required permit. Mr. Burrows stated that he could provide no assurance that the plumbing work was performed properly.[13] 21. Mr. Burrows testified that the construction project was not finished when Burrows abandoned it. Mr. Burrows stated that the loose electrical wire that was left exposed in the kitchen was not intended to be a finished product.[14] 22. Administrative notice is taken of Burrows’ prior License record as reflected on the Registrar of Contractors’ public website on November 14, 2012. Such prior license record reflects that License No. B.128793-R of Burrows is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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. Burrows knowingly performed electrical and plumbing work at Complainants’ residence without a required building permit. Burrows then knowingly covered up its electrical and plumbing work without required inspections by the local building authority. This Tribunal concludes that Burrows violated the charged provision of A.R.S. § 32- 1154(A)(2).[15] 4. Burrows knowingly performed electrical and plumbing work beyond the scope of its contractor’s license. The electrical and plumbing work performed by Burrows failed to comply with applicable workmanship and industry standards and violated applicable code requirements. Burrows’ construction work on Complainants’ cabinets is far below applicable workmanship and industry standards and many, if not all, of the kitchen cabinets will require removal and replacement. This Tribunal concludes that Burrows violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[16] 5. Burrows failed to perform any corrective action at Complainants’ residence in response to the Corrective Work Order. Mr. Burrows testified that Burrows was financially unable and unwilling to perform the directed corrective action. There was no credible evidence of any unreasonable denial of access or unacceptable behavior by Complainants. This Tribunal concludes that Burrows violated the charged provision of A.R.S. § 32-1154(A)(23).[17]

RECOMMENDed order In view of the foregoing, it is recommended that License No. B.128793-R of Burrows shall be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that Burrows pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Burrows to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Burrows’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Burrows, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, November 19, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 11/14/12 Hearing Record (hereinafter “H.R.”) at 13:30-13:53. [2] The Citation and Complaint did not contain an alleged violation of A.R.S. § 32-1154(A)(17). [3] H.R. at 13:54-14:18. [4] H.R. at 14:19-27:14. [5] H.R. at 27:59-30:57. [6] H.R. at 30:58-34:06. [7] H.R. at 35:05-36:38. [8] H.R. at 36:39-37:55. [9] See Exhibit Nos. C-1 through C-45. [10] H.R. at 38:30-40:14. [11] H.R. at 40:15-41:27. [12] H.R. at 41:50-43:18. [13] H.R. at 43:19-45:06. [14] H.R. at 52:50-54:08. [15] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [16] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[17] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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