ALJDEC decisions subject to certification as final

2021A-03527-CHC-ROC · Registrar of Contractors · 2022-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ned Hardcastle,

COMPLAINANT

Brookfield Residential Construction LLC

License No. ROC 215964,

RESPONDENT

No. 2021A-03527-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 9, 2021

APPEARANCES: Complainant Ned Hardcastle appeared on his own behalf. Craig Neubaur, General Manager, appeared on behalf of Respondent Brookfield Residential Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Brookfield Residential Construction LLC (Respondent) is the holder of License No. 215964 issued by the Arizona Registrar of Contractors (Registrar).

On or about , (Complainant) signed a contract with Respondent for, among other things, .

On or about July 27, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Robert Mcquien. After a jobsite inspection, Investigator Mcquien 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 September 9, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Guest bedroom ceiling has never been painted only textured. Painter mixed the ceiling paint with the drywall texture to make the ceiling look like it was painted and it washes off straight to drywall.

Investigator’s Observation: Two areas without paint. CONTRACTOR TAKE CORRECTIVE ACTION.

. . . .

Compliance Item: 3 - Tile at master bathroom in front of the toilet is hollow underneath and the grout is cracking

Investigator’s Observation: Tile was replaced and grouted but not sealed. CONTRACTOR TAKE CORRECTIVE ACTION.

. . . .

Compliance Item: 8 - Three times I have had three different sections of my roof removed and repaired due to leaking. After the last monsoon this week, we could hear tiles on our roof slapping so we know they are loose again.

Investigator’s Observation: Ladder access not available. Respondent advised will have subcontractor investigate. CONTRACTOR TAKE CORRECTIVE ACTION.

. . . .

Compliance Item: 9 - Roofing nails on the eaves appear to be backing out and some nails have been found on the ground.

Investigator’s Observation: Observed roofing nails backing out. CONTRACTOR TAKE CORRECTIVE ACTION.

. . . .

Compliance Item: 10 - Exterior walls and ceilings have cracks

Investigator’s Observation: Observed multiple cracks in stucco and exterior surfaces. CONTRACTOR TAKE CORRECTIVE ACTION.

Following the issuance of the written directive, Respondent performed corrective work on all the items included in the directive. After the deadline in the directive expired, Investigator Mcquien was notified the corrective work had been performed.

On or about September 29, 2021, Investigator Mcquien conducted a compliance jobsite inspection. At that time, he noted that all of the items had been appropriately addressed with the exception of two cracks in the stucco and exterior surface above the manway at the garage.

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

Investigator Mcquien testified that Complainant was concerned with numerous cracks in the stucco, but the only ones that were outside the Registrar’s workmanship standards were the two above the manway. Investigator Mcquien noted that the other cracks he observed were small and did not require correction.

Complainant testified that all the issues identified in the written directive had been corrected as of the date of the hearing except the cracks in stucco. Complainant acknowledged that the cracks above the manway had been corrected on September 12, 2021, but complained that there were still numerous small cracks in the stucco all over the home that needed to be corrected.

Mr. Neubaur testified that cracks Complainant was complaining of were within industry standards. Mr. Neubaur admitted that the cracks above the manway were not corrected until after the deadline in the directive expired. Mr. Neubaur stated that he had completed a work order to have the corrective work completed, but it was not able to be done until September 12, 2021. Mr. Neubaur expressed that he was surprised to have received the Notice of Hearing setting this hearing because he understood the matter had been resolved.

Administrative notice is taken of Respondent’s prior License record on December 28, 2021. Such prior License record reflects that Respondent’s License No. 215964 was first issued on January 27, 2006, and is active. Such prior License record also reflects that there were two open complaints and three prior resolved/settled 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. 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(A).

The evidence established that Respondent did not complete all of the corrective work 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. 215964 for a period of one day.

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, January 19, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000