ALJDEC decisions subject to certification as final
2017A-4111-CHC-ROC · Registrar of Contractors · 2018-05-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dan Maciborski,
COMPLAINANT
-v-
Bruce Evans Henderson DBA: Bruce Henderson Construction
License No(s). 281838, 293609
RESPONDENT
No. 2017A-4111-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 2, 2018, and April 17, 2018
APPEARANCES: Complainant Dan Maciborski appeared on his own behalf. Respondent Bruce Evans Henderson doing business as Bruce Henderson Construction was represented by T'shura-Ann Elias.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Bruce Evans Henderson doing business as Bruce Henderson Construction (Respondent) is the holder of License Nos. 281838 and 293609 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 14, 2016, Dan Maciborski (Complainant) signed a contract with Respondent for the construction of a new home in Bullhead City, Arizona. Bruce Henderson signed the contract as Owner of “Bruce Henderson Construction LLC.” Bruce Henderson Construction LLC had never been issued a license by the Registrar.
On or about August 10, 2017, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Cliff Corlett. On September 15, 2017, after a jobsite inspection, Investigator Corlett issued a Written Directive (First Directive) to Respondent that provided, 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. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on October 3, 2017.
You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 1: Driveway concrete damaged from cracks, grinding footprints. 2 repair attempts already made.
Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states that "All concrete shall be placed in compliance with applicable codes and standards. This will apply to design strenghts [sic], testing, dimensions, frost lines and reinforcement along with items not specifically contained in the codes, such as proper placement in a good and workmanlike manner to achieve appearance and function of the finished product".
There are several areas toward the edge of the driveway that appear that footprints have been "repaired". Those repairs are unsightly and unaceptable [sic].
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
There are also some hairline cracks in the front concrete driveway/walkway. The WSLC states that cracks that exceed 3/32-inches and or 1/8-inch verticle [sic] displacement are unaceptable [sic] and should be properly replaced. All of the cracking observed on 9/5/17 are considered hairline cracks and DO NOT require any contractor action.
Governing Rule: N/A. No violation could be substantiated.
Complaint Item 2: Rear garage door dented. Scraches [sic] on other (front) garage doors.
Investigator’s Observation: Respondent by and through his council agreed to properly correct the dented, scracthched [sic] garage doors.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 3: Kitchen cabinet warped.
Investigator’s Observation: Respondent by and through his council agreed to properly correct the warped kitchen cabinet door(s). Two (2) kitchen doors were indicated at the onsite inspection.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 4: Granite countertops.:
a. Chunks missing.
b. Bad seams.
c. Cracks along top.
d. Non-polished.
e. Scratches and marks at all cut areas.
Investigator’s Observation: a. “Chunks missing” The granite installer appears to have installed damaged countertop material in kitchen. There are “chunks” of material missing from under countertop edge. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
b. “Bad Seams” RESPONDENT SHOULD PROPERLY FILL AND POLISH ANY/ALL GRANITE SEAMS AS NEEDED TO MATCH SURROUNDING GRANITE.
c. “Cracks along top”, Kitchen countertop appears to have a very fine crack along one corner.
RESPONDENT SHOULD CORRECT OR REPLACE BY APPROPRIATE METHODS.
d. “Not Polished”, Respondent by and through his attorney agreed to properly polish countertops and needed. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
e. “Scratches and marks at all cut areas”, Respondent by and through his attorney agreed to properly polish countertops and needed. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
***** Complainant brought an additional issue regarding the kitchen countertop installation to the Respondents and the ROC’s attention at the onsite inspection.
Complainant states that the plywood sub-top is not properly fitted/cut to correct size/dimensions and not completely adhered to the granite top.
This item was not listed on the formal complaint and I cannot “officially” address it. HOWEVER, I (ROC) agree with the Complainant that the installation over the substrate is poor workmanship and would require corrections. *****
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 5: Glass scratched 3 french doors, entry side light scratched and upside down.
Investigator’s Observation: Respondent by and through his council agreed to properly correct / replace the damaged/scratched glass.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 6: Rear patio concrete damaged by saw blade cut, stains and cracked.
Investigator’s Observation: Rear patio has a small gouge that appears to have been made by a saw blade. The WSLC allow for a contractor to properly repair minor concrete damage and or pop-outs, matching surrounding areas as closely as possible. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
The Complainant stated that he cleaned the stain(s) prior to inspection and no crack was observed at the onsite inspection.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 7: Master bathroom exterior window frame missing piece.
Investigator’s Observation: Respondent by and through his council agreed to properly correct the missing window fram [sic] trim.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 8: Generator wiring not per contract. To be run to three specific items only.
Investigator’s Observation: Respondent by and through his council agreed to have installing electrician return and determine if the specific circuitry requested is possible.
However the Respondents contract specifies the installation of a dedicated generator system/circuit to three specific locations. The Respondent should comply with the terms of his contract
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 9: Conduit under driveway not per contract. Not to city code.
Investigator’s Observation: Building contract calls for conduit under driveway for future wiring OR plumbing. No approved plans were presented at inspection indicating a required location for this future piping. Both parties indicated that there are two, 1-inch PVC pipes under the driveway. This would appear to fulfil the requirements of the contract.
As to conduit not being to city code, this Investigator has spoken with Bill Avery, with the Bullhead City engineering department and was informed that the driveway approach was permitted, inspected and approved and that the Respondent met the city requirements.
NO CONTRACTOR ACTION REQUIRED.
Governing Rule: N/A. No violation could be substantiated.
Complaint Item 10: Stucco repair front of garage poor match.
Investigator’s Observation: Respondent by and through his council agreed to properly correct the poorly matching stucco repair on the front garage.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 11: Exterior paint not complete. (Rear of garage).
Investigator’s Observation: Respondent by and through his council agreed to properly correct complete the exterior wall painting on the rear of the garage.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 12: Left piles of cement on neighbors property to the east.
Investigator’s Observation: There is some dried concrete debris/rubble left on ajacent [sic] vacant lot. (not talking about the wash out).
RESPONDENT SHOULD REMOVE THE DRIED CONCRETE DEBRIS/RUBBLE.
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.
On September 27, 2017, Complainant filed an addendum to the complaint.
On October 31, 2017, Investigator Corlett conducted a compliance inspection as to the First Directive and a jobsite inspection as to the items raised in the addendum.
On November 8, 2017, Investigator Corlett issued his compliance jobsite inspection notes. In the notes, Investigator Corlett observed the following related to the First Directive: Complaint Item 1 – Repairs unacceptable; Complaint Item 2 – Repairs scheduled but not yet completed; Complaint Item 3 – Repairs acceptable; Complaint Item 4 – Respondent scheduling different granite contractor, corrections not yet done; Complaint Item 5 – Replacements ordered/not yet installed; Complaint Item 6 – Repairs acceptable; Complaint Item 7 – Repairs completed; Complaint Item 8 – Issue being settled financially; Complaint Item 9 – No contractor action required; Complaint Item 10 – Repair acceptable; Complaint Item 11 – Paint repairs unacceptable/Respondent stated he would redo; Complaint Item 12 – Repairs completed; and Complaint Item 13 – No contractor action required. Investigator Corlett determined that as of October 31, 2017, Respondent was not in compliance with the First Directive.
On November 8, 2017, Investigator Corlett issued a Written Directive (Second Directive) to Respondent that provided, 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. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license.
You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on November 27, 2017.
All work to be performed by properly licensed contractors and or their bonafide employees.
You are hereby directed to remedy the following violations by the appropriate means:
. . . .
Complaint Item 2: Vehicle garage door making noise while opening.
Investigator’s Observations: Respondent agreed to have door/opener issue corrected. (Warranty work). RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 3: Paint on front door windows (frames) is peeling. Interior and exterior.
Investigator’s Observations: Paint was peeling off door/window frames, interior and exterior. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS MATCHING SURROUNDING AREAS 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.
Complaint Item 4: Scratched glass on front door windows.
Investigator’s Observations: Scratches were observed on front door window sidelights. These scratches appear to be from impropper [sic] cleaning methods. The Workmanship Standards for Licensed Contractors (WSLC) states that scratches observable from 15-feet in daylight are unaceptable [sic], however the WSLC also states that damage to manufactured surfaces must be reported at the time of walk-thru. If no walk-thru is conducted then the defects must be reported to the contractor or the contractor[’]s representative within 10-days after move-in. If the complainant has written proof that the scratched glass was reported at walk-thru or within 10 days after move-in then the Respondent should properly replace the scratched glass. If no written proof is available then the Respondent is not required to replace the scratched glass.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 5: Missing tile grout.
Investigator’s Observations: There were various areas of missing tile grout observed.
RESPONDENT SHOULD PROPERLY REPAIR/REPLACE THE MISSING TILE GROUT MATCHING THE SURROUNDING AREA(S) 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.
Complaint Item 6: The substrate under the granite countertop(s) impropperly [sic] cut/fitted and adheared [sic].
Investigator’s Observations: The substrata beneath the kitchen island was observed to be improperly cut, fitted and not entirely adhered to the granite top.
RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
It is this Investigator[’]s understanding that the granite tops are going to be replaced by a different granite company/installer.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 7: Granite edge in pantry not bullnosed.
Investigator’s Observations: The house floorplan this Investigator received from the Respondent shows full upper and lower cabinets and countertops in the pantry where the chest freezer now sits. Obviously some changes were agreed to in regards to eleminating [sic] some countertops/cabinets and leaving room for a freezer. A square edge countertop in this freezer area would not be unusual for the installation of a full height stand up freezer. A bullnose edge would also have worked. No details or agreements were provided to determine whether a square or bullnose edge was required.
NO CONTRACTOR ACTION REQUIRED.
Governing Rule: No violation could be substantiated.
On November 28, 2017, Investigator Corlett conducted a second compliance jobsite inspection.
On November 28, 2017, Investigator Corlett issued updated compliance jobsite inspection notes based on his observations. In the notes, Investigator Corlett observed the following related to the First Directive: Complaint Item 1 – Respondent not in compliance; Complaint Item 2 – Respondent not in compliance; Complaint Item 3 – Respondent in compliance; Complaint Item 4 – Respondent not in compliance; Complaint Item 5 – Respondent not in compliance; Complaint Item 6 – Respondent in compliance; Complaint Item 7 – Respondent in compliance; Complaint Item 8 – Issue being settled financially; Complaint Item 9 – No contractor action required; Complaint Item 10 – Respondent in compliance; Complaint Item 11 – Respondent not in compliance; Complaint Item 12 – Respondent in compliance; and Complaint Item 13 – Respondent in compliance. Investigator Corlett determined that as of November 28, 2017, Respondent was still not in compliance with the First Directive.
On December 1, 2017, Investigator Corlett issued compliance jobsite inspection notes as to the Second Directive based on his observations. In the notes, Investigator Corlett observed the following: Complaint Item 2 – Respondent not in compliance; Complaint Item 3 – Respondent in compliance; Complaint Item 4 – No contractor action was required on right side scratched window glass, therefore Respondent in compliance; Complaint Item 5 – Respondent in compliance; Complaint Item 6 – Respondent not in compliance; and Complaint Item 7 – There was insufficient documentation to support either position. Investigator Corlett determined that as of November 28, 2017, Respondent was not in compliance with the Second Directive.
On December 8, 2017, the Registrar issued a notice to Respondent noting that a licensee must do business under the name in which the license is issued. The Registrar suggested that Respondent 1) operate the construction business under the name in which it was licensed or 2) request a formal name change with the Registrar’s Licensing Department.
The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(4); A.R.S. § 32-1154(A)(9); A.R.S. § 32-1154(A)(14); and A.R.S. § 32-1154(A)(22).
Investigator Corlett testified that of the items in the First Directive and Second Directive, those issues still remaining to be corrected were the concrete driveway, the scratched garage door, the granite issues, the exterior paint of the rear of the garage, the garage door noise, and the substrata on the granite countertop. As to the charge that Respondent failed to comply with the statutes or rules governing social security, workers’ compensation or unemployment insurance, Investigator Corlett stated that Arizona Industrial Commission records did not show that Respondent had any employees. As to the charge that Respondent aided or abetted an individual to evade the statutes and regulations of the Registrar, Investigator Corlett testified that the records provided show there were persons on Complainant’s project that were not licensed and were not employees of Respondent. As to the charge that Respondent was acting in the capacity of a contractor under any license issued by the Registrar in a name other than as set forth on the license, Investigator Corlett stated that the Registrar issued a license to Bruce Evans Henderson doing business as Bruce Henderson Construction, but Respondent signed the contract as the owner of Bruce Henderson Construction LLC, which had never been licensed by the Registrar.
Concrete Driveway
Complainant testified that after the driveway was poured and partially cured, an employee of a different subcontractor walked across the driveway and left footprints up the driveway. Complainant indicated that the attempted repairs had not corrected the appearance. Complainant noted that a section of the driveway had been replaced for a different reason and that, while the colors were initially different, the difference was no longer noticeable or problematic. Complainant testified that the attempted repairs to the driveway were not aesthetically pleasing in that the patches were a noticeably different color that had not diminished over time.
Respondent presented the testimony of Andy Iler, owner and qualifying party of ACI Concrete. Mr. Iler testified that he did a skim coat with a mixture of silica, resin, and bonding material, and then rebroomed the patch to match the surrounding area. Mr. Iler stated that he matched the color as close as possible, but the concrete had not cured out yet. Mr. Iler admitted that he had not looked at the driveway recently.
Garage Door Damage
Complainant testified that Respondent replaced the damaged garage door with a new one, but the new garage door was also damaged. The new garage door was installed on November 21, 2017.
Respondent proposed popping out the small dents on the garage door and repainting the entire garage door, but Complainant would not accept that solution. Respondent pointed to an email dated October 4, 2017, in which Complainant stated that “the last we heard, the door was going to be replaced with a new one” and “painting and repairing a brand new factory door is not acceptable.” Respondent acknowledged that the newly installed garage door had minor dents and scratches that still needed to be addressed.
Regardless of whether Complainant demanded a particular manner to fix the garage door, the attempt to complete the corrective work to the garage door was not done prior to the deadline provided in the First Directive and the repair that was done after the deadline passed was not appropriate as observed by Investigator Corlett.
Granite Countertops
In the First Directive, the issues with the granite countertops involved missing chunks, bad seams, cracks along the top, polishing, and scratches and marks at all cut areas.
Both parties agreed that the granite on the kitchen island needed to be replaced and that as of the date of the hearing, the granite had not been replaced.
On September 22, 2017, counsel for Respondent emailed Complainant indicating that Respondent needed to find another contractor to address the granite issues and asked “for your patience while we attempt to secure an appropriate granite contractor to assist with this complaint item.” Exhibit R26.
On September 25, 2017, Complainant responded and stated, “We completely understand that time will be needed to correct the numerous problems. What amount of time is needed to actually find a contractor?” Id.
On September 26, 2017, counsel for Respondent replied that “we will need to not only locate a licensed granite contractor, but also someone willing to do the work. We will need a few weeks to find[] someone to do this.” Id.
On September 26, 2017, Complainant responded that “‘A few weeks’ is not an acceptable time frame simply to find a licensed contractor willing to do the work. This is an extremely open time frame. I am willing to give your client until October 5, 2017 to provide a licensed contractor to do the job as this is the deadline provided by the ROC. The company we spoke to was willing to do the work.” Exhibit R27.
On September 26, 2017, after some back and forth emails, Complainant stated, “Please know that we understand that all of the corrections cannot be done by the fifth but we do feel that is ample time to at least find a licensed contractor.” Exhibit R31.
At 4:29 p.m. on October 3, 2017, counsel for Respondent emailed Complainant and stated that, “My client is currently meeting with a few granite companies. It is his hope he can get one in to do the granite work soon.” Exhibit R34.
On October 5, 2017, counsel for Respondent emailed Complainant and stated that Taken for Granite had “agreed to work with [Respondent] in following the ROC directive regarding the Granite [sic]. He would like to come up on Tuesday at 8:00 a.m. so he can review the granite and the directive and provide [Respondent] with a proposed fix for the granite.” Exhibit R41.
On October 17, 2017, counsel for Respondent emailed Complainant indicating that “We are waiting for an estimate from the granite company for the corrective work to be completed, which my client should have by tomorrow. The Granite company has stated it would like to complete the work within the next 2 weeks. If you could provide dates and times that work for you in the next 2 weeks, I can coordinate with the granite company.” Exhibit R43.
On October 17, 2017, Complainant responded inquiring what work would be done if Respondent had not yet received an estimate.
On October 31, 2017, Investigator Corlett conducted a compliance inspection and determined that Respondent was scheduling different granite contractors and the corrections had not yet been completed.
On November 9, 2017, counsel for Respondent emailed Complainant as follows:
My office is in receipt of an estimate from Taken for Granite. That being said, the estimate seems to be for the replacement of all of the granite surfaces in the home, which is beyond the scope of the corrective work order, nor have I received anything from this contractor stating that replacement of granite, including granite surfaces not included in the original complaint or amended complaint is, in fact necessary. As such, my office has retained Echelon Tile and Stone to take a look at the alleged defects as stated in the corrective work order and give us a plan and estimate for such work. The purpose of this email is to request access to your residence for Echelon Tile and Stone to come to the residence with myself and/or Mr. Henderson to take a look at the Granite.
Exhibit R54.
On November 13, 2017, Complainant responded to the request as follows:
To summarize, your client chose Taken for Granite as the licensed contractor to come to the house and look at the repairs. You and your client were aware that we had also contacted the same company prior to get an estimate. Your client went ahead with this company and we agreed. You client was advised that the proper corrective measures would be to replace all damaged countertops. You client instructed Taken for Granite to give him a bid for that job. On 10/31/2017, during the inspection, your client related that he had not heard from Taken from [sic] Granite. We provided an e-mail from “Jamie” at Taken from [sic] Granite, advising that they advised your client of the aforementioned and would like to schedule a date to take measurements. During this same meeting, you requested that we try to get a copy of the estimate since Taken for Granite was allegedly not contacting your client. We received a copy of the estimate and specifically requested that you client be sent a copy as well. Your e-mail dated November 9, 2017, alleges that the estimate includes work not included in the original complaint however the initial complaint clearly states “...scratches all cut areas”. Every countertop was in fact cut in some form and every countertop is scratched. It is clear that your client is not happy with the cost to repair the faulty workmanship/material and he simply wants to find someone that will agree with his idea of repairs and attempt price shopping. It is our opinion that this is not reasonable as we agreed to the licensed contractor that your client chose. Based on the aforementioned and after careful consideration, we reject your request to have yet another company come in.
Exhibit R57.
On November 16, 2017, counsel for Respondent emailed Complainant as follows:
My client will be using Echelon to perform the corrective work to the granite countertops per the directive dated September 15, 2017. More specifically, the following corrective work will be completed:
The granite counter on the island will be replaced and the plywood
sub-top will be corrected by appropriate means;
All seams will be properly filled and polished
All granite countertops will be properly polished
Any scratches and marks at cut areas will be polished and/or repaired.
Echelon is confirming it can get the same granite as the one that is installed in the island at your residence. Once I have confirmation of that, I will provide you a copy of the confirmation, and Echelon will need access to the residence to get measurements. I will provide you dates of Echelon’s availability.
Exhibit R59.
On November 16, 2017, Complainant responded as follows:
As previously stated, we DO NOT AGREE to have another granite company come in. Your client had been previously advised, by a licensed granite company he selected, that the proper corrective measures would be to replace all the countertops. The fact remains that we paid for brand new granite countertops. We did not pay for second hand granite that has been repaired, corrected, fixed, what ever you want to call it. We accept the estimate that your client received from Taken For Granite.
Exhibit R60.
After some back and forth communications, counsel for Respondent indicated that Echelon needed access to the property to take measurements to give Respondent an estimate because Respondent did not believe the First Directive required all of the granite countertops to be replaced as Taken for Granite had indicated. Counsel for Respondent averred that Taken for Granite had not informed Respondent that the countertops had to be replaced to correct the issues and believed Echelon could repair the issues through less extreme remedial measures. Complainant asserted that he had paid for new granite and would not accept damaged granite that had been repaired as a cost saving measure.
Respondent presented the testimony of Jay Siddall, owner and Qualifying Party of All in Once Kitchen and Bath, who asserted that the kitchen island granite needed to be replaced, but that the scratches throughout the house could be polished out. Mr. Siddall stated that such a method constituted an acceptable repair in the industry.
Complainant presented the testimony of Joshua Brow, owner and Qualifying Party of Taken for Granite, who asserted that polishing out the scratches would not be cost effective or result in an attractive finish. Mr. Brow stated that polishing removes material at an uneven rate and could require an unknown number of hours to achieve an even finish. Mr. Brow testified that he had one time polished a break while working in Alaska, but had never attempted to polish joints since being in Arizona. Mr. Brow acknowledged that other contractors will polish granite, but no one is happy with the results and he gets work as a result. When asked about the Registrar’s minimum standards indicating that scratches in natural stone are a natural feature and therefore should not be assumed to be a workmanship issue, Mr. Brow stated that none of the scratches he observed were natural and were obviously a tool mark.
Exterior Paint
The parties agreed that corrective work needed to be completed on the exterior paint and that no repairs had been attempted prior to the October 3, 2017 deadline in the First Directive.
On October 5, 2017, “Tommy” from All Star Plastering performed some repairs to the exterior wall.
On October 31, 2017, Investigator Corlett performed the compliance inspection and noted that the exterior paint repairs were unacceptable and Respondent stated he would redo the work.
On or about December 13, 2017, Tommy inspected the home to prepare an estimate as to what needed to be done to repair the wall.
On or about February 6, 2018, Tommy sent Complainant a text message stating “I would like to apologize for taking so long. Through my own bad business affairs I been broke. I am now ready to start.”
On February 20, 2018, counsel for Respondent emailed Complainant as follows:
Separately, you had inquired what All Star Plastering would be doing, and here is the response. They would also like to know the date(s) you are available.
The entire back garage wall needs to be repaired by doing the following:
Brown the wall with foam tex
Re-shoot the finish
Repaint surface.
Exhibit F.
On February 21, 2018, Complainant stated in response that “This issue of rear garage was issue to be handled long ago. This is a complaint issue now which is set for Hearing.” Id. (errors in original).
Garage Door Noise
Following the issuance of the First Directive, Respondent sprayed lubricants on the garage door wheels to see if that would alleviate the noise. Respondent denied having knowledge that the placement of the attic entry interfered with the garage door.
As noted during the November 28, 2017 compliance inspection, the vehicle garage door opener appeared to “labor” a bit at the top of the opening cycle causing some unusual opener “noise” when the door was operated.
Conduit
Complainant provided his opinion that the location of the conduit under the driveway was contrary to the plans and/or city codes, but provided no evidence to support that conclusion.
Respondent stated that the city inspector approved the location of the conduit.
Scratched Glass on Front Entry Side Windows
Complainant provided notice of the issue on July 6, 2017. According to the complaints in this matter, Complainant moved into the home on June 21, 2017. Complainant testified that he listed June 21, 2017, on the complaints because that was when the certificate of occupancy was issued, but stated he did not move into the home until later. Complainant referenced a text message as evidence that he did not move in until later.
Aiding and Abetting Unlicensed Contracting
Tracey Hilliker performed work on Complainant’s home. The Registrar opened case number 2017-5883 regarding possible unlicensed contracting by Mr. Hilliker.
According to an email from counsel for Respondent dated October 31, 2017,
Mr. HIlliker was paid as an employee throughout 2016 until January 2017 when he requested to be paid as a 1099 employee. I have attached his payroll records for January 2017 through July 2017. I have also attached a statement from Mr. Hilliker confirming his request. At no time did my client hire Mr. Hilliker as the “Tile Guy” which is also confirmed by Mr. Hilliker’s signed statement. I am not aware of the reason Mr. Hilliker made this particular request, however, even doing so, Mr. Hilliker was still covered under my client’s Workmen’s Comp. It is also my understanding that Mr. Hilliker is no longer being paid as a 1099 employee, but is currently paid as a wage employee.
Respondent’s payroll documents show that from January 12, 2017, through July 21, 2017, Mr. Hilliker was paid as a “1099 employee”. For the payments made to Mr. Hilliker, the “Type” listed during this time frame was “Check”, the checks were not made at regular intervals, the checks were all in even dollar amounts, and the payments totaled $42,260.00. Notably, each check was broken down into different addresses. For example, the March 17, 2017 check number 3842 was broken down into 2373 Monterey for $1.760.00; 3235 Esmerelda for $450.00; 2387 Corwin Rd. for $150.00; and 2373 Monterey for $200.00. Complainant’s address was noted on checks issued on May 6, 2017; May 12, 2017; May 17, 2017; June 2, 2017; June 12, 2017; and June 16, 2017. It was also noted under Box 7: Nonemployee Compensation that Mr. Hilliker was paid a total of $42,260.00. Beginning on August 25, 2017, Mr. Hilliker began receiving payments with the “Type” listed as “Paycheck” in varying amounts such as $1,413.12, $1,247.25, and $1,473.52. Mr. Hilliker received a total of $11,366.08 in between August 25, 2017, and October 27, 2017. Respondent’s “Payroll Summary Report” provided that from January 1, 2017, through October 30, 2017, Mr. Hilliker received gross wages of $14,070.00 and net pay of $11,366.08.
The Registrar’s notes for case number 2017-5883 provide as follows:
During a review of employment documents for Licensed ROC Case 2017-4111 it was discovered Tracey James Hilliker was being paid as a 1099 employee for Bruce Henderson dba: Bruce Henderson Construction. See documents provided by Henderson’s Attorney T’shura-Ann Elias. The documents were presented to ROC Legal who determined a 1099 employee does not exist. I contacted Hilliker and he admitted to being paid on/off as a 1099 employee. Hilliker said he is currently on payroll for Henderson. Hilliker was advised the ROC does not recognize a 1099 employee. Hilliker was advised he was not allowed to work at jobsites where a permit was issued or when the dollar amount was over $1000.00, unless he was an employee of a licensed contractor. Hilliker was given a verbal warning since the issue was corrected prior to the ROC discovering the violation.
Respondent appeared to argue that because the Registrar did not cite Mr. Hilliker for contracting without a license, Respondent could not be found to have aided and abetted unlicensed contracting.
Social Security, Workers’ Compensation, and Unemployment Insurance
Investigator Corlett testified that there was no evidence of workers’ compensation coverage in the Industrial Commission. Investigator Corlett stated that he could not find anything in the Industrial Commission records showing Respondent had any employees.
Operating Under a Name Other than on the License
The Registrar issued License Nos. 28138 and 293609 to Bruce Evans Henderson doing business as Bruce Henderson Construction.
Mr. Henderson signed the contract as Owner of “Bruce Henderson Construction LLC.” Bruce Henderson Construction LLC had never been issued a license by the Registrar.
Respondent argued that it was unable to change the name on the license earlier because, at the time of the contract, there was a pending complaint against Respondent.
License History
Administrative notice is taken of Respondent’s prior License record on May 17, 2018. Such prior License record reflects that Respondent’s License No. 281838 was first issued on October 29, 2012, and is current. Such prior License record also reflects that there were two resolved/settled/withdrawn complaints against Respondent’s license.
Such prior License record reflects that Respondent’s License No. 293609 was first issued on August 6, 2014, and is current. Such prior License record also reflects that there were no prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 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).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Specifically, the concrete driveway, dented/scratched garage door, granite countertops, exterior paint, noisy garage door, and substrata on the granite countertops all failed to comply with the Registrar’s minimum workmanship standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
Complainant failed to present evidence sufficient to establish a workmanship violation related to the conduit and the front entry side window.
The evidence established that Respondent did not compete the corrective work following the First Directive or Second Directive being issued. The attempted repairs of the concrete driveway, garage doors, and exterior paint failed to comply with the Registrar’s minimum workmanship standards.
While Respondent asserted a denial of access with respect to many, if not all, of the issues, the evidence failed to establish such a denial occurred that would excuse Respondent’s failure to comply with the written directives. Respondent focused mainly on Complainant’s refusal to allow an alternate contractor access to provide a quote with respect to the granite issues and assertions that he would not allow Respondent to repair the granite and would only accept new granite.
It is true that a homeowner cannot dictate how a contractor complies with a written directive or require a particular subcontractor to perform the corrective work. However, it is noted that Complainant’s refusal to allow additional contractors access to the property occurred after the deadline for compliance with the First Directive expired. Notably, Respondent did not have any contractor inspect the granite and provide any kind of quote until after the deadline expired.
Similarly, Complainant was not required to provide Respondent unfettered access to the property to repair those issues that Respondent failed to appropriately correct at the first opportunity.
Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
The evidence presented at hearing established that, while working on Complainant’s project, Mr. Hilliker was neither a licensed contractor, nor an employee of Respondent. Therefore, Complainant established that Respondent aided or abetted an unlicensed person to evade the Registrar’s statutes and regulations in violation of A.R.S. § 32-1154(A)(9).
The allegation regarding violations of social security, workers’ compensation and/or unemployment insurance was less clear. It was not possible to determine from the presentation of evidence if the alleged violation was the result of using unlicensed contractors as “1099 employees” or of failing to comply with those rules with respect to bona fide employees of Respondent. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(4).
The evidence presented at hearing clearly established that Respondent signed the contract as the Owner of “Bruce Henderson Construction LLC”, which had never been issued a license by the Registrar. While Respondent argued it was unable to change the name on the license until a separate pending complaint had been resolved, Respondent failed to address why Respondent was unable to change the name on the contract until such a time as it had changed the name on the license. Therefore, Complainant’s established that Respondent acted in the capacity of a contractor in a name other than as set forth on the license in violation of A.R.S. § 32-1154(A)(14).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 281838 and 293609 for a period of ten days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
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 will be 40 days from the date of that certification.
Done this day, May 22, 2018
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors