ALJDEC decisions subject to certification as final

2012A-753-ROC · Registrar of Contractors · 2012-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2012, at 8:00 a.m. APPEARANCES: Douglas Graham (hereinafter “Complainant”) appeared on his own behalf. Browner Building and Design LLC (hereinafter “Browner”) failed to appear. 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. Browner is the holder of License No. B.205707-R issued by the Registrar of Contractors. 2. This is a residential matter where on July 29, 2011, Browner contracted with Complainant to construct an addition to Complainant’s residence. The new addition was to be completed before November 24 (“Thanksgiving Day”), 2011. 3. Browner began construction work on the new addition, then stopped work, and on September 30, 2011, left the construction project. 4. When Browner failed to return to Complainant’s residence to complete the construction project in accordance with the parties’ construction agreement, Complainant filed a formal Complaint against Browner with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Theodore William Gerold (hereinafter “Inspector Gerold”), conducted an onsite inspection. Inspector Gerold issued a written Corrective Work Order on February 27, 2012, directing Browner to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order provided, in pertinent part, as follows: This contractor is to address the following by appropriate means:

1. Large landscape boulder has to be relocated, per the contract, so it doesn’t block the main entrance to the addition. Contractor to address. 2. I saw no compromise or excessive settling of the foundation at this time. No action is required by the contractor. 3. The plumbing cleanout stack is exposed to the exterior on the east side of the house. Contractor to relocate the plumbing and properly patch the stem wall. 4. I saw no abnormalities regarding the levelness of the concrete foundation. No action is required by the contractor. 5. I saw construction damages to the landscape plants, rocks, concrete spoils left on the ground, damage to the underground trash container, and to the irrigation lines on the east side of the house. Contractor to address all damages done to property caused during construction. 6. I inspected all of the framing lumber material and found it to be within standards. However, contractor is to ensure that there are no excessive bows in the walls and ceiling prior to drywall installation. 7. The city framing inspection had not passed. Contractor to make sure all inspections are passed and have all necessary corrections made to achieve this. 8. Some framing dimensions, the bay window, bath pocket door and pony wall are incorrect. Contractor to ensure that all framing match the plans and or specifications. 9. I saw some water leak damage done to the interior family room ceiling. Contractor is to address this. 10. Contractor is to complete this project in a timely manner and per all plans and specifications.

7. Inspector Gerold testified that he conducted a pre-hearing inspection on October 11, 2012. Inspector Gerold stated that during the pre- hearing inspection, he observed that several studs in the partially completed addition have become bowed beyond applicable workmanship and industry standards and that the plywood on the roof of the partially completed addition has deteriorated and warped. Inspector Gerold testified that the bowed studs and the warped and deteriorated plywood will have to be replaced, in addition to the items set forth in the Corrective Work Order.[1] 8. Inspector Gerold testified that the partially completed framing work performed by Browner failed to comply with applicable plans and specifications. Inspector Gerold stated that because the framing was not constructed per plans and specifications, a portion of the completed framing will have to be removed and replaced.[2] 9. Inspector Gerold testified that there is water damage in Complainant’s family room as a direct result of Browner’s partially completed construction work on Complainant’s residence. Inspector Gerold stated that Browner is fully responsible for the correction of the water damage in Complainant’s family room. Inspector Gerold testified that Browner failed to return to Complainant’s residence and complete the construction project as per the Corrective Work Order.[3] 10. Inspector Gerold’s testimony is found to be credible. 11. Complainant’s daughter, Margaret Lynn Graham (hereinafter “Ms. Graham”), testified that the framing failed the framing inspection conducted by the local building authority. Ms. Graham stated that Browner stopped all work on Complainant’s property and failed to return and complete the construction project despite repeated pleas by Complainant and the Corrective Work Order. Ms. Graham testified that Complainant’s building permit expired on April 15, 2012, and that Complainant is subject to fines by the homeowners’ association for Browner’s failure to complete the construction project in a timely manner.[4] 12. Ms. Graham testified that all worked stopped on September 30, 2011. Ms. Graham stated that Browner falsely represented that the framing for the new addition had passed the inspection by the local building authority and requested payment for the completed framing. Ms. Graham stated that Complainant paid for the framing based upon Browner’s false representation that the framing had passed the framing inspection by the local building authority.[5] 13. Ms. Graham testified that Browner failed to perform any work in response to the Corrective Work Order. Ms. Graham stated that Browner contacted Complainant and requested full payment for the delivery of new roof tiles that had allegedly been ordered. Ms. Graham stated that Complainant contacted the roof tile supplier and was informed that no roof tiles had been ordered.[6] 14. Complainant testified that he paid Browner $32,500.00 in accordance with the parties’ payment schedule. Complainant stated that he did not receive full value for the money that he paid Browner. Complainant testified Browner has taken all of his contractual allowances and that it will cost additional money to correct Browner’s poor work and to properly complete the construction project.[7] 15. Administrative notice is taken of Browner’s prior license record as reflected on the Registrar of Contractors’ public website on October 16, 2012. Such prior license record reflects that License No. B.205707- R of Browner was voluntarily canceled on September 26, 2012. CONCLUSIONS OF LAW 1. The cancelled status of Browner’s license does not deprive Complainant of his right to prosecute his complaint against Browner or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C).[8] 2. 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. 3. 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). 4. Browner abandoned Complainant’s construction project on September 30, 2011, leaving Complainant with an unfinished construction project. The wood framing and roof of the addition have suffered extensive warping and deterioration as a result of Browner’s abandonment and refusal to complete the construction project despite repeated opportunities to do so. This Tribunal concludes that Browner violated the charged provision of A.R.S. § 32-1154(A)(1).[9] 5. Browner failed to comply with applicable plans and specifications, damaged Complainant’s property while Browner was performing work on the new room addition, falsely represented that the framing for the new addition had been inspected and approved by the local building authority, and failed to perform construction work in compliance with applicable workmanship and industry standards. This Tribunal concludes that Browner violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[10] 6. Browner failed to comply with the provisions of the Corrective Work Order. This Tribunal concludes that Browner violated the charged provision of A.R.S. § 32-1154(A)(23).[11] RECOMMENDed order In view of the foregoing, it is recommended that License No. B.205707- R of Browner shall be revoked on the effective date of this Order unless the Registrar of Contractors receives and accepts written proof that Browner has caused a properly licensed contractor of Complainant’s choice, at Browner’s sole expense, to fully comply with the terms of the written Corrective Work Order and to properly remove and replace all deteriorated and warped plywood and bowed studs. It is further recommended that if on or before the effective date of this Order, Browner provides acceptable written proof that it has caused a properly licensed contractor of Complainant’s choice, at Browner’s sole expense, to fully accomplish the above described corrective action, then the above provided License revocation shall not take place and, instead, Browner’s License No. B.205707-R shall be suspended for a period of forty- five days. It is further recommended, in addition to the above-provided penalties, if any, that Browner 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 Browner 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 Browner’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Browner, 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, October 17, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 10/12/12 Hearing Record (hereinafter “H.R.”) at 11:37-12:23. [2] H.R. at 12:43-15:02. [3] H.R. at 15:03-15:45. [4] H.R. at 16:53-21:59. [5] H.R. at 21:59-23:12. [6] H.R. at 23”35-26:17. [7] H.R. at 53:18-56:43. [8] A.R.S. § 32-1154(C) provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [9] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [10] 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. [11] 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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