ALJDEC decisions subject to certification as final
2022A-06632-CHC-ROC · Registrar of Contractors · 2023-01-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Randall Scott Williams ,
COMPLAINANT
v.
Bostick Remodeling LLC
License No. ROC 277614,
RESPONDENT
No. 2022A-06632-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: December 13, 2022, 1:00 P.M.
APPEARANCES: Complainant Randall Scott Williams appeared on his own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Bostick Remodeling, LLC (Respondent), is the holder of License Number 277614 issued by the Registrar of Contractors (Registrar).
2. On or about August 8, 2022, Randall Scott Williams (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and fraud in connection with the renovation by Respondent of a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $100,000.00
3. The Registrar performed an inspection of the project on September 6, 2022. Thereafter, the Registrar issued a Directive, dated September 9, 2022, requiring Respondent to correct the alleged poor work on the project by completing the following items by September 26, 2022, by appropriate means. Further the Directive stated:
The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive. (Any corrective work to prevent or eliminate roof leaks may be performed prior to a permit being obtained.) 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 submit a copy of the approved inspection results to the ROC Investigator.
Complaint Item 1: “The bid I was given to send to the lender; does not match the scope of the on the drawings (Exhibit #1). Request for a correct bid and receipts were acknowledged, but never provided (paid by Trust)”
Investigator’s Observations: Verified.
There is no document titled “Contract” for this project. There is a document titled “Estimate” which appears to be a contract for this project; however, both parties confirmed the “Estimate is not actually for this project. The “Estimate” includes the complainant’s address, and the names of both parties. Both parties confirmed this document is for a different project, with just the customer name and address changed. It was stated this document was provided for the sole purpose of obtaining financing. There is no written contract for this project.
Complaint Item 2: “Roof leaks x 3 - 2 from bathroom exhaust fans, 1 from A/C vent”
Investigator’s Observations: Verified.
Roof leaks have caused cracks and damaged drywall in at least three locations. Several new roof penetrations were created during this project and are poorly sealed/flashed.
Complaint Item 3: “19’ Glulam beam was removed without a permit; no engineering calculation were provided”
Investigator’s Observations: Verified.
The respondent confirmed removing a lead bearing beam from the northwest bedroom and replacing it with a smaller beam. The respondent confirmed this work was performed without a permit being obtained.
Complaint Item 4: “Doorway was cut out of a load bearing wall without a permit”
Investigator’s Observations: Verified.
The respondent confirmed installing a doorway through a load bearing wall. The respondent confirmed this work was performed without a permit being obtained.
Complaint Item 5: “2 bathrooms were completely remodeled without permits”
Investigator’s Observations: Verified.
The respondent confirmed remodeling these bathrooms as part of this project. The work on the bathrooms included modifying plumbing inside the walls and below the foundation. The work also included modifying electrical inside the walls and ceilings. The respondent confirmed this work was performed without a permit being obtained.
Complaint Item 6: “10 yards of concrete was poured without a permit”
Investigator’s Observations: Verified.
The respondent confirmed adding concrete to raise the interior floor height in part of the laundry room and in a back room of the house. This work included raising the height of a back exterior door, which also required modifying an opening in a load bearing wall. The respondent confirmed this work was performed without a permit being obtained.
Complaint Item 7: “new electrical wiring was installed w/o permit; electrical panel already permitted”
Investigator’s Observations: Verified.
The respondent confirmed the work also included modifying electrical inside the walls and ceilings. The respondent confirmed this work was performed without a permit being obtained.
Complaint Item 9B: “3-way switches were not installed...in the living rooms (annotated on drawings)”
Investigator’s Observations: Verified.
The living room does not have three-way switches to control the lighting.
The respondent confirmed this room was intended to have three-way switches.
Complaint Item 10: “Drawings do not dictate omitting the outlet on the south wall of the living room”
Investigator’s Observations: Verified.
The respondent denied removing a receptacle form the living room; however, based on the distance between the receptacles on the south and east walls, it is evident that at least one receptacle has been removed or covered.
Complaint Item 12: “The laundry room has no working light on a switch, which it had before the project started”
Investigator’s Observations: Verified.
There is currently no switched lighting in the laundry room. Additionally, there is an electrical coiled up and hanging from the ceiling by the power supply wires.
Complaint Item 13: “There was no PAD poured outside the sliding glass door, which Bostick Remodel said they would do”
Investigator’s Observations: Verified.
Outside the rear patio door installed by the respondent is an area of pre-existing pavers. The respondent acknowledged he was intending to install a concrete pad in this area.
Complaint Item 15: “The drawings don’t annotate cable TV lines being run across the roof.”
Investigator’s Observations: Verified.
Coax wiring is currently run across the roof with no protection from the elements. The penetrations through the roof are poorly sealed/flashed. The lines are directly on the roof surface with no elevation to prevent damming.
Complaint Item 18: “30” x 16” section of drywall/paint unfinished in 3rd bedroom”
Investigator’s Observations: Verified.
There is a section of drywall removed near the center bathroom. The repair work is not complete. The respondent acknowledged this section of drywall was removed to perform needed work on plumbing inside the wall. The drywall repair work is not complete.
4. The Directive further contained the following warnings that were ultimately included in the Citation:
Warning Letter: Elements of a Contract.
Investigator’s Observations: There is no document titled “Contract” for this project. There is a document titled “Estimate” which appears to be a contract for this project; however, both parties confirmed the “Estimate is not actually for this project. The “Estimate” includes the complainant’s address, and the names of both parties. Both parties confirmed this document is for a different project, with just the customer name and address changed. It was stated this document was provided for the sole purpose of obtaining financing. There is no written contract for this project.
Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract. Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:
1: The name of the contractor and the contractor's business address and license number.
2: The name and mailing address of the owner and the jobsite address or legal description.
3: The date the parties entered into the contract.
4: The estimated date of completion of all work to be performed under the contract.
5: A description of the work to be performed under the contract.
6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
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.
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.
9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...
9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.
REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158
Warning Letter: Performing permit required work without a permit being obtained.
Investigator’s Observations: A permit was obtained; however, the respondent performed more permit required work than what was identified on the issued permit and on the approved plans.
Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code... Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(b): Violation of any rule adopted by the registrar;
Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards...
REQUIRED CORRECTIVE ACTION: The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive. 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 submit a copy of the approved inspection results to the ROC Investigator.
Warning Letter: Working beyond scope of License.
Investigator’s Observations: The respondent has a CR-61 Carpentry, Remodeling and Repairs license. This license restricts the licensee from contracting for, or performing work on, projects that exceed
$50,000.00. This project was initially contracted at $100,014.40.
As stated in the submitted complaint form, the respondent has been paid $113,531.63 to date.
Governing Rule: A.R.S. § 32-1154(A)(16): Knowingly contracting beyond the scope of the license or licenses of the licensee.
Warning Letter: Aiding and Abetting.
Investigator’s Observations: The respondent acknowledged hiring an unlicensed subcontractor, named Don Casey, to perform electrical work on this project.
Governing Rule: A.R.S. § 32-1154(A)(9) Attempting to evade this chapter by:
• (a) Aiding or abetting a licensed or unlicensed person.
• (b) Acting or conspiring with a licensed or unlicensed person.
• (c) Allowing one's license to be used by a licensed or unlicensed person.
• (d) Acting as agent, partner, associate or otherwise of a licensed erson.
5. The Registrar then issued a Citation to Respondent, dated September 22, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b)) for failure to perform work in accordance with applicable building codes and professional industry standards;
d. A.R.S. § 32-1154(A)(9) (attempting to evade this chapter by aiding or abetting a licensed or unlicensed person);
e. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract and violation of A.R.S. § 32-1124(B) for failure to include license number in bid);
f. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of the license;
g. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar issued a Notice of Hearing, dated November 10, 2022, that set a hearing for December 13, 2022, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about November 10, 2022, at its address of record.
7. A hearing was held on December 12, 2022, at 9:00 A.M. Complainant Randall Scott Williams testified on his own behalf. No appearance was made on behalf of Respondent. John Smith, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 4. No exhibits were submitted on behalf of Respondent.
8. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on his own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to dispute disciplinary action being imposed against its license.
9. The Investigator on behalf of the Registrar testified as to his inspection of the project, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he advised Respondent that it could not perform the work or hire others to perform the work. On September 25, 2022, he stated he received an email from Respondent stating an architect had been hired to assist with the permitting. He further testified that on September 28, 2002, he sent an email to Respondent asking how he intended to do corrective work when its license did not permit such work. He further stated Respondent responded on October 3, 2022, indicating that Respondent would let him know but he heard nothing further and that Complainant advised him on November 15, 2022, that there had been no progress with Respondent on a resolution.
10. The Investigator further testified that Hugo Bostick of Respondent admitted at the inspection that he was aware that the project was beyond the scope of his license, namely, in excess of the value of $50,000.00 which his CR61 license did not permit. He stated Mr. Bostick further admitted he knowingly hired an unlicensed contractor, Don Casey, to perform electrical work on the project.
11. Complainant Randall Scott Williams testified that no corrective work was ever undertaken. He stated there is another $60,000.00 to $65,000.00 worth of work to complete the project.
12. Administrative notice is taken of Respondent’s prior license record as of today’s date Such prior license record reflects that Respondent’s License No. 277614 was first issued on April 16, 2012. Such prior license record also reflects that there were no other disciplinary actions imposed against Respondent’s license.
.
CONCLUSIONS OF LAW
1. 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.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
...
2. Departure from or disregard of: (a) Plans or specifications 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. (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
3. Violation of any rule adopted by the registrar.
...
9. Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person. (b) Acting or conspiring with a licensed or unlicensed person. (c) Allowing one's license to be used by a licensed or unlicensed person. (d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.
...
12. Failure in any material respect to comply with this chapter.
...
16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rules allegedly violated in this case are Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,” and Arizona Administrative Code Rule 4-9-108(B) which requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”
7. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. 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. 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. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. A.R.S. § 32-1154(A)(2)(b). Complainant has presented sufficient evidence to establish that Respondent 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 and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(2)(b). The evidence presented reflected that Respondent had proceeded with work without the required building permits for such tasks as moving walls, and plumbing and electrical work.
9. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a) and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(3). No evidence was presented to dispute existence of any of the Directive items.
10. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work failed to perform work in accordance with any applicable building codes and professional industry standards and did not comply with Arizona Administrative Code Rule 4-9-108(b) and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(3). As previously referenced, the evidence presented reflected that Respondent had proceeded with work without the required building permits.
11. A.R.S. § 32-1154(A)(9)(a). Complainant has presented sufficient evidence to establish that Respondent attempted to evade this chapter by aiding or abetting a licensed or unlicensed person. The evidence demonstrated that Respondent admitted to knowingly hiring an unlicensed contractor to perform electrical work.
12. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required to the required contents of the contract and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(12). The evidence presented reflected there was no written contract between the parties. Further, Respondent failed to respond to the Registrar’s warning informally requesting a copy of Respondent’s form contract.
13. A.R.S. § 32-1154(A)(16). Complainant has presented sufficient evidence to demonstrate that Respondent knowingly contracted beyond the scope of its license and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(16). The evidence reflected that the contract between the parties was for an amount in excess of $100,000.00, and that Respondent knew that its CR61 license was limited to projects of a value of $50,000.00 or less.
14. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent made no contact with Complainant during the Directive period for a resolution of this matter nor were any Directive items corrected. There was no evidence presented of a valid justification for failing to do so.
15. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to established cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(2), § 32-1154(A)(3), § 32-1154(A)(9), § 32-1154(A)(12), § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Bostick Remodeling, LLC ‘s, License Number 277614 is suspended for seven (7) days.
IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 the outstanding prior civil penalty.
. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, January 3, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Respondent(s)
Bostick Remodeling LLC
3434 W Sophia St
Tucson, AZ 85741
[email redacted]
Complainant(s)
Randall Scott Williams
7151 E Desert Aire Dr
Tucson, AZ 85730
[email redacted]-54864001
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