ALJDEC decisions subject to certification as final

2021A-03001-CHC-ROC · Registrar of Contractors · 2021-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey Michael Krouse,

COMPLAINANT,

v.

Brookfield Residential Construction LLC

License No. ROC 215964,

RESPONDENT.

No. 2021A-03001-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 12, 2021

APPEARANCES: Complainant Jeffrey Michael Krouse appeared on behalf of himself. Craig Neubar appeared on behalf of Respondent Brookfield Residential Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about October 5, 2018, Complainant Jeffrey Michael Krouse and Respondent Brookfield Residential Construction, LLC (Brookfield) entered into new home construction contract.

2. On November 18, 2018, Brookfield began work.

3. On July 17, 2019, Brookfield stopped work.

4. On June 30, 2021, Mr. Krouse filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor work on the part of Brookfield.

5. On July 19, 2021, ROC Investigator Robert McQuien conducted an investigation into the complaint.

6. On July 21, 2021, Investigator McQuien issued a Directive to Brookfield. The Directive provided, in relevant part, 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 August 10, 2021.

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:

Compliance Item: 3 - Office window not operational.

Investigator’s Observation: Windows leaks to the inside at bottom of window. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Windows in the master toilet and shower not operational.

Investigator’s Observation: Window in toilet room will not open. Window in shower area is difficult to open. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Laundry room window not operational.

Investigator’s Observation: Window will not open. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - Walk in Closet window not operational. Investigator’s Observation: Window will not open. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Front entry door not plumb.

Investigator’s Observation: Door is not square. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Exterior windows have had weep holes enlarged and stuffed with a sponge material.

Investigator’s Observation: Exterior windows have had weep holes enlarged and stuffed with a sponge material. A bathroom exterior window has delamination fit corners of frame. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

7. On September 7, 2021, Investigator McQuien conducted a compliance job-site inspection. Investigator McQuien observed that the windows were properly corrected and that the repairs met minimum workmanship standards. However,

Investigator McQuien observed that the entry door was out of square.

8. On September 8, 2021, Mr. Krouse provided a video to Investigator McQuien that showed that showed excessive infiltration of water into the window in the closet of the master bedroom.

9. On September 8, 2021, Investigator McQuien recommended the case to the ROC legal department for the issuance of a Citation against the license of Brookfield.

10. On September 8, 2021, the ROC issued a Citation against Brookfield’s license. Through the Citation, the Registrar alleged that Brookfield may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, Arizona Administrative Code section R4-9-108(a); A.R.S. § 32-1154(A)(22).

11. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of

Brookfield.

12. Brookfield filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. On or about October 8, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on November 12, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

15. A hearing was held on November 12, 2021.

16. At hearing, Mr. Krouse testified on behalf of himself. Investigator McQuien testified regarding his investigation of the complaint and the issuance of the Directive. Brookfield presented the testimony of Craig Neubar, the General Manager and Vice President of Brookfield and Michele Pisterzi, an employee of Brookfield.

17. Mr. Krouse testified that Brookfield performed poor work when it built his home.

18. Mr. Neubar and Ms. Pisterzi testified to the effect that Brookfield corrected all of the items listed in the Directive and that the corrections satisfied minimum workmanship standards. Mr. Neubar stated that entry door was repaired on September 16, 2021. Mr. Neubar stated that the ROC and the manufacturer of the windows determined that Brookfield’s repair of the windows met minimum workmanship standards.

19. Investigator McQuien explained that the repairs to the windows met Arizona’s minimum workmanship standards. See Investigator McQuien’s testimony on the hearing record at 12:30 to 15:39 minutes. Investigator McQuien also stated that under the ROC workmanship standards, excessive infiltration does not meet minimum workmanship standards. Investigator McQuien testified that Mr. Krouse submitted videos that showed excessive infiltration. Investigator McQuien originally testified to the effect that the videos provided by Mr. Krouse were recorded on September 8, 2021. See Investigator McQuien’s testimony on the hearing audio at 21:15 to 23:43.

20. Later in the hearing, Mr. Krouse stated that the two videos that he submitted to Investigator McQuien were recorded in September of 2019 and October 2019. Following Mr. Krouse’s testimony, when Investigator McQuien was asked by the Administrative Law Judge whether he was aware that the videos were recorded in September 2019, Investigator McQuien responded, “No.” See Investigator McQuien’s testimony on the hearing audio at 37:00 to 39:30. However, Investigator McQuien stated that he observed the window in the closet of the master bedroom “pulsing” at the time of the compliance job-site inspection. Investigator McQuien explained that the window was covered with plastic at the time. See id. Investigator McQuien stated that there was no stucco on the front door. However, the Directive did not include information related to stucco.

21. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on December 1, 2021. Respondent’s license record shows that its licensed was issued on January 27, 2006 and that there are two open complaints against Respondent’s license. Respondent’s license has never been disciplined by the Registrar. Respondent’s license record shows that three complaints against Respondent were resolved or settled by Respondent or withdrawn by the complainant after the issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

3. The preponderance of the evidence shows that Respondent’s work did not comply with the ROC’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

4. The preponderance of the evidence shows that Respondent failed to properly repair the front entry door.

4. The preponderance of the evidence shows that Respondent properly corrected complaint items 3, 4, 6, 7, and 9 regarding the windows. Investigator McQuien credibly testified that the windows were repaired and that the corrections met minimum workmanship standards. Because the videos submitted by Mr. Krouse were recorded approximately two years before the complaint was filed, the videos are not evidence that Respondent failed to comply with the Directive. Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(22) with regard to complaint items 3, 4, 6, 7, and 9.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 215964 of Brookfield Residential, LLC shall be suspended for a period of one day.

It is further recommended that the ROC require Respondent to pay the sum of 250.00 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 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 forty days from the date of that certification.

Done this day, December 1, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors