ALJDEC decisions subject to certification as final
2017A-4067-CHC-ROC · Registrar of Contractors · 2018-01-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert Kivett Jr,
COMPLAINANT,
v.
J Burroughs Construction LLC,
License No: 270040, 270041
RESPONDENT.
No. 2017A-4067-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 2, 2018
APPEARANCES: Complainant Robert Kivett Jr. appeared on behalf of himself.
Joseph Burroughs appeared on behalf of Respondent J Burroughs Construction LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
1. In or about January 2017, Complainant Robert Kivett Jr. (“Mr. Kivett) and Respondent J Burroughs Construction LLC (“Burroughs Construction”) entered into a residential construction agreement.
2. In or about January 2017, Burroughs Construction began work under the contract. The contract did not include Burroughs Construction’s business address or
a statement that the property owner has the right to file a written complaint with the
Registrar for alleged violations of A.R.S. § 32-1154(A).
3. On or about January 20, 2011, the Registrar of Contractors (“Registrar”) issued to Burroughs Construction license no. 270040.
4. On or about February 4, 2011, the Registrar issued to Burroughs Construction license no. 270041.
5. Joseph Burroughs is the qualifying party for Burroughs Construction.
6. Burroughs Construction does not hold a residential general contractor’s license. Burroughs Construction is licensed to perform commercial construction work.
7. On or about August 8, 2017, Mr. Kivett filed a Complaint with the Registrar alleging poor workmanship on the part of Burroughs Construction.
8. On or about August 30, 2017, Investigator Cliff Corlett of the Registrar conducted an on-site job inspection.
9. On or about September 11, 2017, the Registrar issued a Directive to Burroughs Construction. The Directive refers to several items in the Complaint, however only items 7 and 10 required were substantiated and required correction by Burroughs Construction. Complaint item 13 was an allegation that Burroughs Construction performed work outside the scope of its license. The September 11, 2017 Directive provides, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see 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. A.R.S. § 32-1154 (A)(E) of up to $500. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on September 29, 2017. You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 7: Floor is full of battery acid & oil stains from old equipment.
Investigator’s Observation: Metal buildings of this type are generally used as shop and or storage facilities. Wheel and tire marks from machinery used during the buildings erection is normal. The industry standard for this type construction is for the contractor to leave the new floor in a broom clean condition. The Respondent did agree to repair the concrete "chips" in the floor. There is an area in the rear (S.E.) corner where there is a brownish stain (possible acid stain). RESPONDENT SHOULD PROPERLY CLEAN AND NATURALIZE ANY RESIDUAL ACID FROM THIS AREA. It is unlikely the stain can be removed, however as stated above these type structurers are generally used as storage or shop buildings and some floor stains are not generally an issue.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 10: Chips in floor not fixed, floor not cleaned.
Investigator’s Observation: Respondent agreed to repair the concrete floor "chips"
RESPONDENT SHOULD PROPERLY REPAIR CONCRETE CHIPS MATCHING SURROUNDING AREAD AS CLOSELY AS POSSIBLE.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
You are advised that if your license is suspended for administrative reasons or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.
If your license 270040 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.
You may not perform or hire other contractors to perform work that is outside the scope of your license If any workmanship violations listed above are designated as outside the scope of your license then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.
10. Burroughs failed to correct Complaint Items 7 and 10 items by September 29, 2017.
11. Mr. Burroughs contacted Mr. Kivett several times during the time period for compliance under the Directive. However, Mr. Kivett did not return any of Mr. Burroughs’s phone calls.
12. Burroughs Construction attempted to gain access to the residence, but Mr. Kivett did not provide access to Burroughs Construction.
13. On or about October 19, 2017, the Registrar issued a Citation and Complaint against Burroughs alleging that it violated A.R.S. sections 32-1154 (A)(3), (A)(12),(A)(16), (A)(17) and (A)(22).
14. Burroughs Construction filed timely appeal to the Citation and Complaint.
15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
18. At hearing, Mr. Kivett testified that he did not provide access to Burroughs Construction because the Registrar informed him that Burroughs Construction was not licensed to perform the corrective work. The Registrar informed Mr. Kivett that Burroughs Construction was only licensed to perform commercial construction.
Mr. Kivett testified that he did not understand that he was required to submit bids or invoices to Burroughs Construction to provide Burroughs Construction with the opportunity to pay for the outstanding items listed in the Directive. Mr. Kivett testified that he submitted bids to the Investigator.
19. During the time period for compliance under the Directive, Mr. Kivett did not request that Burroughs Construction pay for the corrective work.
20. Mr. Kivett testified that he would have paid for another contractor to perform the work because there were only two items that needed to be corrected.
21. Mr. Burroughs testified that Mr. Kivett knew that Burroughs Construction was a commercial contractor and not licensed for residential construction.
21. Administrative notice is taken of Respondent’s prior License records on January 22, 2018. Such prior License record reflects that Respondent’s License No. 270040 was first issued on January 20, 2011 and is current. Such prior License record also reflects that Respondent’s License No. 270040 was suspended from April 4, 2011 to August 10, 2011 and August 10, 2017 through September 19, 2017. Such prior License record also reflects that there is one open complaint against Respondent, and one complaint that was resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation.
22. Such prior License record reflects that Respondent’s License No. 270041 was first issued on February 4, 2011. Such prior License record also reflects that Respondent’s License No. 270041 was suspended on April 4, 2011 through August 10, 2011. Such Prior License record also reflects that Respondent’s License No. 270041 was suspended on March 1, 2017, July 21, 2017 and August 10, 2017 through August 15, 2017. Such prior License record also reflects that there has been no open complaints against Respondent’s License No. 270041.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
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.
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. The preponderance of the evidence shows that Burroughs Construction violated A.R.S. § 32-1154(A)(12). The contract did not include Burroughs Construction’s business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A).
5. The preponderance of the evidence shows that Burroughs Construction violated A.R.S. § 32-1154(A)(12) and (A)(16) .
6. The preponderance of the evidence does not show that Burroughs Construction violated A.R.S. § 32-1154(A)(17). There was no evidence provided at the hearing that Burroughs Construction performed work under a license that was suspended at the time that it performed work. The evidence shows that Burroughs Construction’s License No. 270040 was active from August 11, 2011 through August 8, 2017.
7. The preponderance of the evidence shows that Burroughs Construction
did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
8. The preponderance of the evidence does not show that Burroughs Construction violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive without valid justification. The preponderance of the evidence shows that Mr. Kivett did not give Burroughs Construction the opportunity to resolve the matter as required by the Directive. Mr. Burroughs provided credible testimony that he tried to call Mr. Kivett several times and Mr. Kivett did not deny that he failed to take Mr. Burroughs’s phone calls. Mr. Kivett testified that he would have paid for another contractor to make the repairs because the only items that needed to be repaired under the Directive were the acid and oil stains, the chips in the floor and the cleaning of the floor. However, Mr. Kivett did not return Mr. Burroughs’s phone calls. Instead, Mr. Burroughs obtained bids and had the work corrected by a contractor other than Burroughs Construction. Therefore, the preponderance of the evidence does not show that Burroughs Construction violated A.R.S. § 32-1154(A)(22) by failing to comply with the Directive without valid justification. The evidence presented at hearing shows that Mr. Kivett did not understand that he was required to give Burroughs Construction the opportunity to pay for the outstanding corrective work or settle the matter.
RECOMMENDed order
In view of the foregoing, it is recommended that J Burroughs Construction LLC fully comply with the terms of the written Corrective Order issued in this matter within 30 days of the effective date of the Registrar’s Order.
If the Registrar of Contractors receives and accepts written proof that J Burroughs Construction LLC has fully complied with the terms of the written Corrective Work Order issued in this matter within 30 days of the effective date of the Registrar’s Order, then this matter shall be closed.
If the Registrar of Contractors does not receive and accept written proof that
J Burroughs Construction LLC has fully complied with the terms of the written Corrective Work Order issued in this matter within 30 days of the effective date of the Registrar’s Order, then commencing on the 31st day of the effective date of the Registrar’s Order, License No.270040 and License No.270041 of J Burroughs Construction LLC shall be suspended for a period of three days.
It is further recommended that if J Burroughs Construction LLC provides acceptable written evidence that Mr. Kivett has refused to communicate with
J Burroughs Construction LLC regarding a financial settlement or payment for the corrective work performed with regard to the outstanding items on the Directive, then the above-provided License suspension shall not take place and this matter shall be closed.
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, January 22, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors