ALJDEC decisions subject to certification as final

2020A-04304-CHC-ROC · Registrar of Contractors · 2021-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Lee Warren,

COMPLAINANT

CamBuilders LLC,

License No. 322435,

RESPONDENT

No. 2020A-04304-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 10, 2021

APPEARANCES: Complainant David Lee Warren appeared and was represented by Richard Crenshaw. Cody Campbell, Qualifying Party, appeared on behalf of Respondent CamBuilders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

CamBuilders LLC (Respondent) is the holder of License No. 322435 issued by the Arizona Registrar of Contractors (Registrar). Respondent’s license was a KB-2 Dual Residential and Small Commercial license.

On or about April 3, 2020, David Lee Warren (Complainant) entered into contract with Respondent for a major remodeling project of his home including structural components and changing the layout of the home. The contract did not have Respondent’s ROC license number, the date the parties entered into the agreement, Estimated date of completion, description of the work to be performed, an advisement that Complainant had the right to file a complaint with the Registrar, or the signatures of both parties.

Respondent told Complainant that, because they were not adding any square footage to the house, a permit was not required.

On or about September 8, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith.

Complainant reported to Investigator Smith that he believed Respondent was using unlicensed contractors on the project. According to Complainant, he understood the rough electrical, the stucco, the drywall, and the plumbing work was done by unlicensed contractors.

Upon investigation, Investigator Smith discovered that Justin Conklin, the electrician on the project, was not licensed by the Registrar. On October 9, 2020, Investigator Smith issued a Warning Letter to Respondent advising Respondent that aiding and abetting an unlicensed person would constitute grounds to discipline its license under A.R.S. § 32-1154(A)(9).

Upon investigation, Investigator Smith reviewed evidence suggesting that Respondent had bid on, contracted for, or performed work that would require CR-11 and CR-39 licenses. On October 9, 2020, Investigator Smith issued a Warning Letter to Respondent indicating contracting beyond the scope of your license would constitute grounds to discipline its license under A.R.S. § 32-1154(A)(16).

On October 9, 2020, after a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 November 9, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Permits not pulled for construction...”

Investigator’s Observation: Verified: The Tempe building department has confirmed this project requires a building permit.

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

The permit needs to include all aspects of the project, including but not necessarily limited to: structural, electrical, under-slab electrical, plumbing, under-slab electrical, etc... Any destructive work required for inspection purposes will be the responsibility of the respondent. If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to satisfy all requirement of the local building department. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

. . . .

Complaint Item 5: “Original bid for drywall was $5600, and we agree upon this price for the job. Subcontractors for drywall abandoned the job after general contractor paid them $1500 cash. General contractor is trying to pass this loss onto me by increasing the total due for drywall to $6900. After confronting the concern, contractor agreed to absorb the $1300 loss, but has not corrected the line item in our worksheet.”

Investigator’s Observation: Unverified at this time. The respondent has not competed the project in its entirety or submitted a final invoice. The respondent is required to complete the project for the price stated in the contract, or in any agreed upon modification of the contract. If the respondent fails to complete the project for the price stated in the contract, or in any agreed upon modification of the contract; it could possibly be considered a violation of A.R.S. § 32-1154 (A) 8: Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

. . . .

Complaint Item 6: “Original bid for concrete work related to plumbing relocation and structural changes was set at $900. We discussed a change order for replacing concrete at the front door and pouring a new concrete slab in the back yard. Neighbors indicated similar work had cost them $6000. I told the contractor I did not want to spend that much on the front entry and concrete slab. Work was executed before pricing was established, and total cost of $4500 was updated in the contract worksheet. I did not agree to $4500 in concrete materials and labor. When confronted about this charge, the general contractor said "I could deal with it". That's his price. The work should not have been performed before pricing was established and agreed upon by both parties.”

. . . .

Complaint Item 7: “Original bid for waste containers and disposal was $750 for (2) bins. We needed one additional bin and I agreed to an increase in disposal cost. Total amount for waste containers and disposal was agreed to be $1200. Without any discussion or notice, the updated contract worksheet increased from $1200 to $2000. Contractor indicated he was "taxed" by the waste container company, and passed this cost onto me. I did not agree to this cost, and was not responsible for his container rental. Have asked that the container disposal cost be corrected and set back to $1200.”

. . . .

Complaint Item 8: “Workmanship – Structural

Structural work performed does not follow engineering drawings and specifications provided from ROARK Consulting (main beam in living room). Main beam is not secured to walls. Support beams not secured to the floor. Support beam at east wall is “used” material from another jobsite, and does not provide adequate support for main beam. There is an L-shaped block cut out of that support beam, right below where the main beam rests. Structural work performed to brace roof (southern exposure) demonstrates poor workmanship with several rafters not connected to the wall plate”

Investigator’s Observation: Verified: All conditions described by the complainant are present. The respondent is required to satisfy all requirements of the local building department and to correct by appropriate means.

. . . .

Complaint Item 9: “Workmanship – Electrical

Junction box was installed in the garage to reroute electrical for kitchen, new service for can lights and a 30A service for mini-split unit. We did not agree to have a junction box. The electrical was to be run to the main panel. Electrical wires at the junction box are exposed, hanging from the box, creating a safety hazard on the site. Contractor and subcontractor have not corrected the situation after numerous requests.”

. . . .

Complaint Item 10A: “Workmanship – Concrete

Concrete poured at front door is not level, has significant slope dropping from the front door into the living room.”

Investigator’s Observation: Verified: Part of the concrete floor in the entry area is out of level 3/8” in a 4’ span. Part of the concrete floor in the entry area is out of level 3/4” in a 4’ span.

. . . .

Complaint Item 10B: “Workmanship – Concrete

Concrete pad poured in backyard was poured over landscape rock which was to be removed prior to pouring pad”

Investigator’s Observation: Verified: Concrete pad in back yard was poured on top of pre-existing decorative rock.

. . . .

Complaint Item 11: “Workmanship – Drywall

Drywall work does not meet outcomes agreed upon at the onset of the project. Expectations were clearly set given work observed at neighboring job site. Areas that were to be replaced/repaired were not executed to agreed outcomes. New sheetrock installed in main living area does not meet agreed outcomes.”

. . . .

Complaint Item 12: “Workmanship – Plumbing

Plumbing (PEX) run through attic was not properly secured to the structure as required by building code. Advised contractor of the concern which was not corrected before sheetrock and drywall work performed.”

Investigator’s Observation: Verified: Plumbing work was performed without a permit. Plumbing work is not currently visible in attic or below concrete. Respondent is to satisfy all requirements of the local building department.

. . . .

Complaint Item 13A: “Workmanship – Trim and Paint

Baseboards and coping) demonstrate poor workmanship with half measures at corrective action I am not concerned with the gap between baseboards and floor as the concrete is not level and I will address that gap with future remedies

However, there are large gaps between coping and the floor. One side fits perfectly to the floor. The other side has a large gap. (several doors) Coping at door to master bathroom shows visible deformity. Seems to be filled with caulk and painted over. Contractor indicates paint is completed, but basic touch ups are needed.”

Investigator’s Observation: Verified: There are several areas of visible blemishes and defects in the drywall and paint; including visible tool marks, debris in the paint and drywall compound, voids around fixtures, and areas of inadequate paint coverage. There are also visible defects in the trim including; gaps below door casings as large as 3/8”, visible and poorly filled gaps at miters in casings and base boards, unfilled nail holes, base trim installed approximately 6 inches above floor level.

. . . .

Complaint Item 13B: “HVAC trim at new master was to be sprayed, not brushed. HVAC trim was not properly installed, sealed with silicone. Sloppy work.”

Investigator’s Observation: Verified: Exposed metal duct work in the master bedroom: Round duct was spray-painted. Transition duct was brush painted with visible brush strokes. Unpainted screws. Seam sealant applied sloppy and painted over. There are gaps in the duct work. There are visible lines on the duct work from a permanent marker.

. . . .

Complaint Item 14: “Workmanship – Framing – New wall built at the front entry is out of square with the rest of the house.”

Investigator’s Observation: Verified: The framed wall to the right of the double doors in the living room: This section of wall not straight. This section of wall is 1-1/4 inches out of straight in a 3 foot span.

. . . .

Complaint Item 15: “Workmanship – Demo Directions were given to preserve the cabinets, sinks, toilets, and lights from the master bathroom All items from master bathroom were destroyed and disposed of by the contractor resulting in loss of Property Ceiling fans were removed from the ceiling for drywall and paint. All (4) fans were to be reinstalled after drywall and paint completion. Fans are covered in drywall mud, and contractor has not yet installed all the fans.”

Investigator’s Observation: Verified: Currently there are no cabinets, sinks, lights, or toilet in the master bathroom. All ceiling fans have construction debris on them.

. . . .

Complaint Item 16: “16. Abandonment - Stucco

Stucco was originally bid at $11000 for smooth/fine finish stucco of the entire property: house, atrium and both sides of walls around the property Stucco bid was secured for $8500. I approved this bid, and work began by the stucco subcontractor on or around Aug 7, 2020. Sheathing was removed from the walls in the atrium in the morning. The subcontractors left for lunch and never returned. General contractor has refused to finish the stucco work for the entire property for the $8500 bid. And has now refused any stucco work. The atrium must be completed at a fair market price or resheathed with original siding material.”

Investigator’s Observation: Verified: Stucco work is incomplete. Some areas or exterior walls have exposed OSB patches. Some areas of exterior walls have exposed moisture barrier. No stucco has yet been applied.

. . . .

Complaint Item 17: Contractor fails to meet commitments to finish work

There are no formal dates listed in the contract worksheet

All dates communicated by text message

Contractor was to have all electrical trim, drywall, paint, trim, HVAC and clean up complete by Aug 23 per text message.

His opinion is since I have not secured kitchen cabinets, bathroom cabinets and new front doors - his commit dates are not important.

I need his work complete in order to move forward with the remaining project elements that were not awarded to him.”

Investigator’s Observation: Verified: The respondent has left the project incomplete. The respondent has provided no written or verbal response to this complaint. The respondent was not present for the jobsite inspection.

. . . .

VERIFIED NON-WORMKMANSHIP ALLEGATIONS

The following allegations have been verified, however; they are not considered to be workmanship issues:

Complaint Item 2: “Contract is not compliant with ROC guidelines...”

Investigator’s Observation: Verified: The contract is titled Quote.

The respondent’s contract is missing the following information:

• The respondent’s ROC number

• The date the parties entered into the contract

• An estimated date of completion

• A description of the work to be performed

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• Signatures of both parties

Governing Rule: A.R.S. § 32-1154 (A) 12 Namely A.R.S. § 32-1158 Minimum Elements of a Contract

Item 1: The name of the contractor and the contractor's business address and license number.

Item 3: The date the parties entered into the contract.

Item 4: The estimated date of completion of all work to be performed under the contract.

Item 5: A description of the work to be performed under the contract.

Item 9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

Item 9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

Item 9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

Item 9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

Complaint Item 3: “Unlicensed subcontractors...”

Investigator’s Observation: Verified: Based on evidence submitted by the complainant, the respondent hired an unlicensed subcontractor named Justin Conklin to perform electrical work on this project.

Governing Rule: A.R.S. § 32-1154 (A) 9 (a) Attempting to evade this chapter by: Aiding or abetting a licensed or unlicensed person.

All errors in original.

On October 26, 2020, Respondent’s license was suspended for lack of bond. On November 2, 2020, Respondent’s license status was updated to suspended for non-renewal. On November 16, 2020, Respondent’s license was renewed and returned to active status.

Following the issuance of the written directive, Respondent demanded more payments from Complainant prior to performing any corrective work. After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B) and A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On February 9, 2021, Investigator Smith conducted a prehearing inspection. Respondent was present during the prehearing inspection and confirmed he did not perform any work following the issuance of the written directive.

Investigator Smith testified as to his observations of the jobsite and detailed the findings included in the written directive. Investigator Smith indicated Complainant had obtained the required permits and was having some structural work done to correct Respondent’s work. Investigator Smith stated that even if Complainant did not want to get permits as Respondent asserted to him, Respondent was required to not perform any work until the necessary permits had been obtained. Investigator Smith noted that at no time did Respondent file a response to the complaint, to any of the warning letters or to the written directive. Respondent did not contact Investigator Smith at any point except one voicemail message, which Investigator Smith returned the call, but did not hear from Respondent again.

Complainant testified that Respondent told him permits were not required because they were not adding square footage to the home. Complainant stated that he discovered permits were required on the project after he had concerns with a beam placed in the project that did not look secure to him. When he contacted the structural engineer regarding the issue, the engineer requested the stamped and approved plans from the City of Tempe. Complainant asserted that when he confronted Respondent about the need for permits, Mr. Campbell told him permits were not needed, to let him to his job, and that Complainant was just a stupid homeowner. Complainant testified that the estimate he obtained to complete the work under his contract with Respondent was approximately $89,000.00. Complainant stated he had been living in a hotel for the last five to six months and would be out of his home for another six months until the project could be completed.

Mr. Campbell declined to testify at the hearing.

Administrative notice is taken of Respondent’s prior License record on March 2, 2021. Such prior License record reflects that Respondent’s License No. 322435 was first issued on October 29, 2018, and was active. Such prior License record also reflects that there were no other open or 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 entered into a contract with Complainant and did not perform the work in the contract. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent performed work on the project without required permits having been issued by the City of Tempe. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(2).

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 hired an unlicensed electrician to perform work on the project. Therefore, Complainant established that Respondent aided and abetted an unlicensed person in violation of A.R.S. § 32-1154(A)(9).

The evidence established that Respondent’s invoices did not include Respondent’s ROC license number as required by A.R.S. § 32-1124(B). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statutes in violation of A.R.S. § 32-1154(A)(12).

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, the Registrar established 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 contracted to perform electrical and HVAC work that it was not authorized to perform under its license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

The evidence established that Respondent did not attempt to complete any 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 revoke Respondent’s License No. 322435.

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.

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-137160-45720000Done this day, March 3, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000