ALJDEC decisions subject to certification as final

2018A-05575-ROC · Registrar of Contractors · 2020-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marina Radman,

COMPLAINANT

Borman Construction Enterprises Inc,

ROC License: ROC 172469

RESPONDENT

No. 2017A-5599-CHC-ROC

No. 2018A-05575-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 20, 2020

APPEARANCES: Marina Radman, Complainant; Maren Sorensen, Esq. Attorney for the Complainant; Beau Cruz, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

FINDINGS OF FACT

Borman Construction Enterprises Inc., (Respondent) is the holder of License No. ROC172469 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 1, 2017, Marina Radman (Complainant), entered into a contract with Respondent to “[p]rovide labor and one base coat, one mid- coat of 1/2" thick foam granules with a final white coat and all new flashing. Any damaged plywood will be replaced. Removal of all debris included. Roof will have a 10 year warranty.” The contract between Complainant and Respondent did not include an advisement that Complainant had the right to file a complaint with the Registrar.

On or about November 7, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project and that no building permit had been obtained prior to commencing work. The Registrar assigned the complaint to Investigator Beau Cruz. On December 27, 2017, after a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided 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 January 12, 2018.

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

Complaint Item 1: Roof was installed poorly and failed when it rained, causing damage. Contractor refuses to honor 10 year warranty

Foam section that was cut out on top of HVAC ductwork on the roof and caulked/sealed by the Respondent and, water damage around can light in Dining Room and north (N) wall and caused bubbling in drywall as well as next to HVAC return.

Complaint Item 2: Roof has improper drainage, shows ponding, and scuppers are damage/ineffective.

Water ponding on the roof between HVAC duct chase and east (E) parapet wall as well as, water ponding on east (E) side of roof between and, under duct chases and east (E) parapet wall. Respondent is to ensure that roof surface is corrected to allow for proper drainage.

Complaint Item 4: Front bathroom door frame, hardware, walls and baseboards need repairs & painting (job incomplete/poorly done)

Properly sand and paint entire door casing and frame of Front Bathroom and, correct improperly applied finish above baseboard on north (N) wall and exposed nails on baseboard.

Complaint Item 5: Master bedroom ceiling needs repair & leak fixed (job incomplete/poorly done)

Repair area of the two penetrations in Master Bedroom celling between bed and pony wall from old water leak and, minor damage to ceiling by outer northeast (N/E) corner of closet.

Complaint Item 6: Main entry doors have gaps between threshold & bottom of the doors due to substandard work on front foyer walls

Gap between the door and threshold, at the left side of entry door and sweeps on doors.

Complaint Item 8: Entry way baseboards were poorly installed and need refinishing or replacement

Exposed nail heads on baseboards in entry way area and door casing of front entry doors and, damaged/improperly installed baseboards and damaged corner on wall, on southwest (S/W) side of entry way wall to study.

Complaint Item 9: Library entry doorway needs to be textured and painted (job incomplete/poorly done)

Properly texture and paint the soffit wall on Library side above entry opening.

Complaint Item 10: Dining room baseboards were poorly installed and need refinishing or replacement

Missing section of baseboard on the west (W) side of entry into the Dining Room and, missing section of baseboard on the northeast (N/E) corner on the entry of Dining Room.

Complaint Item 12: Ceiling & walls in entry, dining room, kitchen, library, & family room were improperly textured and poorly painted

Excessive streaking/flashing on the ceilings of the Kitchen and Dining Room areas.

Complaint Item 13: Driveway is stained from the painters when they painted lattice; contractor refuses to clean properly

Paint stains on driveway and walkway from driveway to front entry and walkway.

After the deadline in the directive expired, Investigator Cruz was notified of the corrective work that had been performed. Investigator Cruz conducted a pre-hearing inspection on April 16, 2018. He testified and determined that items 1 and 2 of the Written Directive were in compliance but that none of the other items listed were addressed by the Respondent. Moreover, he noted that there had not been a building permit “pulled” for this project prior to commencing work and that as of April 16, 2018, no building permit or inspections were obtained.to determine if the corrective work was appropriate

On February 7, 2018, The Registrar issued a Citation against Respondent, charging possible violations of

A.R.S. § 32-1154(A)(2) (“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 that 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.”);

Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3);

A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter.”);

A.R.S. § 32-1158(A)

Subsequently thereafter, on November 13, 2018, the Complainant filed an additional Complaint against the Respondent regarding the same project alleging workmanship failures discovered after the initial complaint. The Registrar assigned this second complaint to Investigator Beau Cruz. On February 4, 2019, after a jobsite inspection, Investigator Cruz issued an additional written directive to Respondent that provided as follows:

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

February 19. 2019.

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

The Respondent is to ensure that the required building permits have been obtained from the Local Building Authorities prior to making corrections listed in this Directive requiring a permit.

Complaint Item 1: Middle and rear portions of roof have improper drainage, show ponding, and scuppers are damaged/ineffective. Diameter of openings for southwest (S/W), center west(W), northwest (N/W) roof scuppers on west portion area of roof, have been reduced to approximately 2 inches in diameter due to excess foam around openings, preventing proper drainage of rain water, and allows for blockage of scuppers, due to windblown debris. Bubbles (blisters) on surface of west (W) section of roof to the north (N) side of condensing unit and bubbles (blisters) on surface of west (W) section of roof to the south (S) side of

condensing unit. Ponding of water on west (W) side of roof between 1⁄4ʺto 1⁄2ʺ, and ponding and poor water drainage on east (E) side of roof between air duct runs and east parapet wall of between 1⁄4ʺto 1⁄2ʺ with areas of granular loss and surface degradation occurring. Contractor should make necessary repairs to insure proper drainage.

Complaint Item 3: Front doorbell wires were not replaced when Contractor did work on front foyer; door is missing the retractor. Respondent is to replace front doorbell wires. Complainant provided photograph showing doorbell at front entry prior to respondent performing work on front foyer area.

Complaint Item 4: Ceiling in family room/dining room where contractor installed the support beam is not level. Ceiling is supposed to be completely flat and level. THIS WAS NOT APPARENT UNTIL CONTRACTOR DID THE CORRECTIVE WORK; Contractor said it was "nothing" and refused to

Correct/repair the ceiling. Hump/deflection in ceiling in the dining/family room area in area of roof truss/joist area at northeast (E) corner of dining room table.

Complaint Item 5: ITEMS 1 & 2: Contractor did repair the front of the roof as directed. Contractor damaged the front of the house when installing the required scuppers, leaving large visible cuts marks in the stucco and block wall that he refuses to fix. Saw cut mark(s) in block pop-out area above southeast scupper at the front of the structure with visible patch noted.

Complaint Item 6: ITEM 5: Ceiling water damage repair was not completed satisfactorily; texture does not match & semi-gloss paint was used on the ceiling, making the damage more apparent. This work is Repaired area on the ceiling of the master bedroom more visibly pronounced/flashing that when viewed on date of compliance inspection regarding complaint number 2017-5599.

Complaint Item 8: ITEM 9: Contractor improperly painted the entire library instead of painting the one area indicated in the Directive. The newly painted walls have chips from their taping and they failed to clean up the paint they left on the wooden shelf above the window. Missed areas of paint at edges of soffit walls at entry areas between front foyer and kitchen, and poor paint cut-in between ceiling and walls in the library room.

Complaint Item 9: ITEM 10: Corrective work per the Directive is unacceptable, as the Contractor replaced sections of baseboard with new material that does not match the existing. Nail heads are still exposed behind the piano. Exposed nail heads on north (N) and east (E) walls in piano room area

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, The Registrar issued a Citation against Respondent, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and charging Respondent violated A.R.S. § 32-1154(A)(22 (“Failure to comply with the ROC’s Directive within a reasonable period of time).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

An Order issued on May 23, 2019 consolidating case 2018A-05575-ROC with case 2017A-5599-ROC.

The Registrar issued a Notice of Hearing on April 8, 2019, setting a hearing in the consolidated matters. The hearing was many times continued by both parties. By its final order continuing these consolidated cases, hearing was set for February 20, 2020 at 9:00 AM. A copy of the Order continuing and resetting these cases was mailed to the Respondent’s attorney at her address of record.

The original April 8, 2019, Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

On February 19, 2020 (the day before hearing), the Office of Administrative Hearings received written notice from the Respondent’s attorney, Tina Ezzell, Esq.of Tiffany & Bosco stating:

Please be advised that Borman Construction Enterprises will not be attending the hearing scheduled in this matter on February 20, 2020 at 9:00 a.m. and will not further defend this matter because it lacks the necessary funds to do so.

A hearing was held on February 20, 2020.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on March 11, 2020. Such prior License record reflects that Respondent’s License No. 172469 was first issued on February 26, 2002 and is active. Such prior License record also reflects that there were no other open or previous complaints against Respondent’s license. Respondent’s Qualifying Party is Thomas Henry Borman. Mr. Thomas Henry Borman is listed in the Registrar’s records as the Qualifying Party for Red Rock Door Systems, Inc. License Numbers ROC 214437 and 196520. Red Rock Door Systems, Inc., license numbers ROC 214437 and 196520 have been the subject of Registrar discipline. Licenses ROC 214437 and 196520 were revoked on July 21, 2006.

That the Respondent did not appear at hearing in this matter, has failed or refused to comply with the two directives issued in this case in a matter that has been pending since 2017 and that Thomas Henry Borman is the qualifying party of an Arizona Licensed Contractor whose licenses have previously been revoked are aggravating circumstances for purposes of determining discipline, if any, in this case. There are no mitigating circumstances presented, The aggravating circumstances outweigh the mitigating circumstances.

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 copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). That Respondent’s attorney advised in writing and in advance of hearing that the Respondent was not going to appear and that Respondent no longer intended to defend its license in these matters is evidence by a preponderance that the Respondent did, in fact, receive and was aware of its February 20, 2020 hearing date.

The evidence established that Respondent failed or refused to obtain a building permit prior to commencing work on the Complainant’s project and, as of the date of the hearing in this case, still has failed or refused to obtain required building permits and inspection. Thus, it is established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(2).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, it is established by a preponderance of the evidence that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s work was not in conformity with the Registrar’s workmanship standards. Therefore, Complainant established by a preponderance of the evidence that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work in an appropriate manner following the Directive being issued. 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).

...

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. ROC 172469 for a period of Forty-five (45) 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, March 11, 2020.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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