ALJDEC decisions subject to certification as final

2020A-02895-CHC-ROC · Registrar of Contractors · 2020-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wendy Crawford,

COMPLAINANT

All Pro Arizona, LLC,

License No. ROC 322267,

RESPONDENT

No. 2020A-02895-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 13, 2020

APPEARANCES: Complainant Wendy Crawford appeared on her own behalf. Brett Randall appeared on behalf of Respondent All Pro Arizona, LLC. Arizona Registrar of Contractors Investigators Steve Klein and Steve Nelson testified. Trevor Crawford appeared as a witness for Complainant.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

All Pro Arizona, LLC (“Respondent”) is the holder of License No. 322267 issued by the Arizona Registrar of Contractors (“Registrar”).

Complainant Wendy Crawford (“Complainant”) contracted with Respondent for a remodel project that evolved into a new build.

On or about June 15, 2020, the Registrar received a Complaint against Respondent from Complainant alleging numerous items of poor work, as well as financial complaints with respect to the project.

The Registrar assigned the Complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein issued a Written Directive to Respondent that provided in pertinent part as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on July 20, 2020.

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

Complaint #5 Big issue with the installation of the tile. They did not follow the minimum grout lines required for the tile and it is uneven and needs to be replaced.

Inspector’s Observation: Laundry room and hall bath has uneven grout lines, m/bath needs to be completed, and living areas needs a final clean.

Complaint #8 Framing not done to blueprints. Had to move the walls in the master bath and closets. The builder didn't inspect this and when asked about it his response was the framer must have had a good reason to move it. They redid it but still have not corrected the toilet so it is centered.

Inspector’s Observation: Verified m/bath window is not centered in wall space. Respondent shall complete project per approved set of plans.

Complaint #9 Plumbing not done to blueprints. Multiple moves have already been made-and at least one remaining. This caused the slab to be broken and the pipes moved. I now have concerns about the integrity of the lines with all of the movement.

Inspector’s Observation: Plumbing should be completed per plan, specifications, properly executed change orders and local building codes.

Complaint #12 Exterior brick was installed with the wrong color grout. I was told it would be redone but nothing has happened yet. This is just another example of them hiring a sub but not really managing the project.

Inspector’s Observation: Respondent agreed to correct

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint #1. Project changed from a remodel to a new build. That was not my intention and the plans were drawn with 2 original walls remaining. Brett said the city told him to take them down. That turned the project from a remodel to a new build. Caused me to have to pay for 350 tons of soil along with hiring a soil engineer and getting compacting tests. That was a lot of expense and it also was a large delay in getting the permits.

• Inspector’s Observation: Complaint #1 involves a disputed money amount, not workmanship issues. This agency does not have the authority to resolve this issue.

Complaint #2 Cost of this project was originally estimated by Brett at around $200,000--but it is already at about $350,000 and will be around $400,000 when it is completed. As a person that just retired--that added expense is not easy to manage.

• Inspector’s Observation: Complaint #2 involves a disputed money amount, not workmanship issues. This agency does not have the authority to resolve this issue.

Complaint #3. Seven months to get permits--this when I was expecting to have this project completed in 6 months.

Inspector’s Observation: (Lack of jurisdiction on other agencies) The ROC lacks statutory authority to override City of Phoenix permits and inspection decisions.

Complaint #4 Trusses that were reviewed and ordered by All Pro weren't correct--the vents had to be moved. Due to this over site the trusses were cut but no warranty was obtained from the manufacturer.

Inspector’s Observation: Home has passed framing inspection. (Lack of jurisdiction on other agencies) The ROC lacks statutory authority to override City of Phoenix permits and inspection decisions.

Complaint #6 The tile was ordered prior to me approving the cost. It was more expensive than I had planned and when I looked around I found a very similar tile for about $2,000 less. When I discussed this with Brent, he stated it was too much of a hassle to return and that the tile place wouldn't give us a refund just a credit and that would be an issue.

Inspector’s Observation: Complaint #6 involves a disputed money amount, not workmanship issues. This agency does not have the authority to resolve this issue.

Complaint #7 The windows were also ordered without my review and approval. They were ordered in white instead of the black frames I wanted. Also the window beside the front door is clear glass and is a

security concern for me. They have talked about getting tinting but have not done it. I have requested that the glass be replaced with frosted glass but they will not do it.

Inspector’s Observation: No written record provided at time of inspection.

Complaint #10 Billing is a huge issue. In December of 2019 my son and I spent hours trying to understand the billing. We recommended he get a bookkeeper but that wasn't done. Concerns in this area continue. I have requested copies of bills a number of times but he doesn't come thru with them. There is a bill for something at Baseboards and More for $3,278.73 that I paid him for but I have no receipt. I have paid for all of the internal and external doors along with all the baseboards and trim on my credit card so I don't think this is my expense. I called Baseboards and More and they said they don't have a receipt for that amount under All Pro. Also, I have requested copies of the receipts for the pavers that were installed. The bid was for 1800 square feet and when I had the driveway and patio

measured it came to about 1550 square feet. He will not give me the receipts, the name of the businesses or the left over pavers—and there have to be a lot left over.

Inspector’s Observation: Complaint #10 involves a disputed money amount, not workmanship issues. This agency does not have the authority to resolve this issue.

Complaint #11. They are not budget conscious. They got a bid for a garage door and it was for about $5,500. I found one that was equal to or better than that one for $3,500 and I get a $400 gift card and don't have to pay the 10% GC fee. Also, the last bid they got for me was for installing the interior doors, baseboards, trim and closets. Their bid was $14,100 plus $1,400 for their fee. I got the exact same bid for all of that with the same materials for $5,000. Their bid estimated installing MDF unpainted in the pantry for $3,500. That is just way out of line.

Inspector’s Observation: Complaint #11 involves a disputed money amount, not workmanship issues. This agency does not have the authority to resolve this issue.

Complaint #13 Job site was left unsecured on a number of occasions. A bath tub was stolen in December. Although I have no way to know if the house was left unlocked--I end up rebuying and paying for this tub. In the last couple of weeks, the property was left wide open on 2 occasions. I have a lot of appliances and supplies in the house and this should be checked at the end of every day.

Inspector’s Observation: The allegation in complaint #13 are not grounds for the suspension or revocation of the Respondent’s license under A.R.S. § 32-1162(A)(1).and thus are outside the Registrar’s jurisdiction.

Complaint #14 They have charged me a 10% management fee but they don't have consistent site management. They hire subs and hope they do the job right. They have not caught any of the issues that I have mentioned--drywall issues, uneven overhang between 2 sides of the house, plumbing in the wrong place per plans, walls in the wrong place per plans, uneven lights in the ceiling, and other items. It got to the point that I flew my son-also a contractor-- in from Austin TX to inspect the project because I had lost confidence in their ability to produce a good product.

Inspector’s Observation: Financial dispute, also Complainant stated they would submit an addendum to the complaint with a list of workmanship issues to be addressed

Complaint #15 Out riggers weren't installed to plans. Used 2x4's when the plans called for 2x6"s.

Inspector’s Observation: Appears 2x6s were used, Complainant said to skip this item

Complaint #16 For aesthetic reasons, we asked to have as many roof vents as possible moved to the back side of the house. One was moved but the rest were left as is. Also, there are 2 dormer vents missing from the back side of the house. We have requested these be added per the plans but it is still not done.

Inspector’s Observation: Complaint #16 appears to be a plan interpretation issue.

Complaint #17 No eve vents were installed until my son asked about them. When they were installed it wasn't done per the plans.

Inspector’s Observation: Appears to be completed per plan

Complaint #18 There have been many other issues but this are the most critical to me

Inspector’s Observation: Complainant stated they would submit an addendum with a list of workmanship issues to be addressed

Following the issuance of the Written Directive and after the deadline in the Written Directive expired, Investigator Steve Nelson, Investigator Klein’s supervisor, conducted a compliance inspection. At the time of the compliance inspection, Investigator Nelson observed that the four items of Complaint that had been verified by Investigator Klein, specifically item numbers 5, 8, 9, and 12, had not been remedied by Respondent. Investigator Nelson referred the matter to the Registrar’s Legal Department.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Klein testified consistently with his findings contained in the Written Directive with regard to the items of Complaint that were verified, as well as with regard to the items of Complaint that were not verified.

Investigator Nelson testified consistently with his observations from the compliance inspection, specifically that Complaint item numbers 5, 8, 9, and 12 were not remedied.

Investigator Klein conducted a pre-hearing inspection on November 6, 2020. Investigator Klein testified that all corrective work had been performed with the exception of two items, specifically, the bathroom window had not been moved and the grout on the brick veneer was still the wrong color and looked “wavy.”

Investigator Klein testified that with regard to the complaint concerning the trusses, the framing passed inspection by the municipality. With regard to the window in the bathroom, Investigator Klein testified that he did not review the plans, and therefore, could not verify whether the window was in the correct location. However, Respondent told Investigator Klein that the window placement was off by 3 1⁄2 inches. Investigator Klein further testified that Complainant did not provide information as to what the color of the grout was supposed to be.

Complainant testified at length about the items listed in the filed Complaint. Several of the items, including financial and contract disputes, are outside the scope of this administrative hearing as they are outside of the Registrar’s jurisdiction. Complainant testified that the trusses were cut, thereby voiding the applicable warranty. Complainant referenced an invoice from BMC Truss & Components that states, “DO NOT CUT TRUSSES.” See Exhibit 6 at 2. (Emphasis added.) Complainant also referenced the roof framing plan that specifies that “no trusses may be cut or altered without the express approval of the truss engineer.” Id. at 3. The installation instructions for the trusses also state, “Do not cut, alter, or drill any structural member of a truss unless specifically permitted by the truss design drawing.” Id. at 7. Complainant also referenced a photograph of the truss. See Exhibit 7.

Complainant testified that the tile as installed by Respondent was “horrible.” Complainant elaborated that because the wall by the shower was not plumb, the grout lines were uneven, the installation was “sloppy,” and the job looked “messy.” During her testimony, Complainant referenced several photographs depicting the tile installation. See Exhibit 9. Complainant has since had the tile reinstalled by others.

Complainant also testified that the grout on the brick veneer was the incorrect color, and that its application was unprofessional. See Exhibit 14.

Complainant testified that the plumbing was not to plans and submitted a copy of the plumbing plans and photographs of the master bathroom plumbing. See Exhibit 12.

Complainant also provided testimony regarding the outriggers. Complainant asserted that they were supposed to be 2 x 6, yet they are 2 x 4. Complainant provided a portion of the plans for construction that show that the outriggers are specified at 2 x 6. See Exhibit 17.

During cross-examination, Complainant testified that she terminated Respondent from the project on May 23, 2020. Complainant further testified that she did not agree to an extension of time for the work specified in the Written Directive to be completed, notwithstanding that Respondent requested to perform the tile work the following week as the tile would not have been available until that time.

Trevor Crawford, Complainant’s son, testified at hearing. Mr. Crawford is a general contractor in Texas and worked in the construction industry in California prior to moving to Texas. Mr. Crawford asserted at hearing that the gable truss was altered by Respondent because it was ordered incorrectly as the trusses should have been shorter. Mr. Crawford asserted that the truss package was approved by Respondent. Mr. Crawford testified that Respondent cut the trusses without the written consent of an engineer. Mr. Crawford also testified regarding the tile issues, specifically that spacers were not used resulting in “sloppy” work and grout line problems. Mr. Crawford testified that the tile installed on the shower floor was high gloss and not slip resistant. Mr. Crawford testified that the plumbing was not in accordance with the blueprints.

Brett Randall, Respondent’s owner and qualifying party, testified primarily regarding the issues delineated in the Written Directive for which Respondent was ordered to perform corrective work. Regarding the tile, Mr. Randall testified that Complainant terminated Respondent from the project prior to the jobsite inspection, and consequently, Respondent did not have the opportunity to complete the tile. After the issuance of the Written Directive, Respondent requested of Complainant a few additional days for completion of the tile work as the tile was not expected to arrive from the supplier until July 20th or 21st and the deadline for the Written Directive was July 20th. Mr. Randall testified that initially, Complainant acquiesced to additional time. However, when Respondent’s tile installer arrived at the jobsite, Complainant would not allow him into the residence. Mr. Randall further testified that because Complainant changed her mind as to the color of the grout, she did not supply the grout until July 17th.

Regarding the master bath window, Mr. Randall testified that the plans do not call for the window to be centered and explained that this was due to the specifications on the framing plans. Mr. Randall asserted that the window is framed per plans.

Regarding the plumbing, Mr. Randall testified that Respondent was terminated from the project on May 23, 2020, before completion of the trim out as there was no toilet, and no cabinets in which to install the sink. Mr. Randall asserted that all plumbing had been correctly installed prior to Respondent’s termination and Respondent was not able to complete trim out prior to the city inspection on July 7, 2020.

Mr. Randall testified that Complainant chose the color of the grout for the exterior brick and that she chose a mortar mix, rather than grout. The mortar mix must be combined with water and is initially dark but cures over time. Mr. Randall testified that at the time of the installation of the mortar mix, Complainant stated that she did not want Respondent to finish installing the mortar because she did not like it. Mr. Randall acknowledged that it looked sloppy because Respondent was asked to leave the jobsite and not provided an opportunity to complete the work and clean up.

Mr. Randall asserted that the outriggers and trusses were not included in the Written Directive.

Mr. Randall testified that Respondent was not provided notice of the compliance inspection. Mr. Randall asserted that after the issuance of the Written Directive, Respondent made “extensive efforts” to comply, and was deceived by Complainant into thinking that Complainant would allow Respondent additional time to complete the work. However, Complainant would not allow Respondent to do so.

Administrative notice is taken of Respondent’s prior License record on November 24, 2020. Such prior License record reflects that Respondent’s License No. 322267 was first issued on October 10, 2018, and is active. Such prior License record also reflects that there are two open complaints, including the instant Complaint, zero complaints resulting in discipline, and zero resolved/settled/withdrawn 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 failed to establish that Respondent’s work departed from or disregarded a building code of this state or any political subdivision of this state in any material respect that is prejudicial to another. The only item of Complaint that Investigator Klein indicated in the Written Directive that was to be completed to code was the plumbing. Investigator Klein testified that the plumbing had been corrected at the time of the pre-hearing inspection. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(2)(b). Respondent was not charged with a violation for departing from or disregarding plans or specifications in any material respect with regard to the bathroom window. Consequently, this violation cannot be found.

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established 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 compete the corrective work following the Written 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. 322267 for a period of three (3) 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)(7), 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.

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-137160-45720000Done this day, November 30, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000