ALJDEC

99F-2646-ROC · Registrar of Contractors · 2000-01-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On January 11, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). The Complainants appeared on their own behalf. Jack Duncan Brock appeared on behalf of J. Duncan Brock Builders, Inc. (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made. FINDINGS OF FACT

1. Complainant Judy Sersow is the mother of Robert and Tom Sersow. All three Complainants reside at a home (the “Home”) located at 4028 North 38th Street, Phoenix, Arizona. Jack Duncan Brock is the Respondent’s President and CEO. The Respondent is the holder of a Class B license.

2. On June 6, 1998, Complainant Judy Sersow and the Respondent entered into a contract (the “Contract”) to remodel a bathroom (the “Bathroom”) at the Complainants’ Home. See Respondent’s Exhibit A. The amount of the Contract was $7,640.00. Id. Judy Sersow gave the Respondent a $3,000.00 deposit.

3. The Contract stated that the “Contractor agrees to commence work . . . within one week of owner’s acceptance and to diligently pursue work through to completion . . .” See Respondent’s Exhibit A, page 1. Robert Sersow testified that the Respondent promised that the remodeling job would only require 4 to 6 weeks to complete. Robert Sersow testified that he did request a 30 day postponement of the starting date because he wanted to remodel the Home’s second bathroom before the Respondent commenced the remodeling of the Bathroom.

4. Judy Sersow testified that she called the Respondent several times to commence work after the remodeling of the second bathroom had been completed. Judy Sersow testified that Mr. Brock was always obnoxious on the phone. Judy Sersow testified that the Respondent failed to come to the Home prior to September of 1998.

5. On or about September 9, 1998, Judy Sersow was hospitalized for a short period of time. Robert Sersow testified that he called the Respondent to request that the demolition of the Bathroom be completed while his mother was in the hospital. Mr. Sersow testified that the demolition of the Bathroom was completed while Judy Sersow was in the hospital. However, Robert Sersow testified that the Respondent stopped working on the Bathroom after its demolition.

6. Judy Sersow testified that she met with the Respondent on October 6, 1998 to discuss the status of the Bathroom remodeling job. Judy Sersow testified that she learned that many of the items for the remodeled Bathroom had not yet been ordered or purchased. Judy Sersow testified that the meeting was a complete waste of time.

7. Judy Sersow testified that the Respondent’s crews appeared sporadically at the Home during October and November of 1998. Judy Sersow testified that she sent a “problem list” to the Respondent on November 19, 1998. Judy Sersow testified that she complained to Mr. Brock that the Respondent’s crews were incompetent.

8. Judy Sersow testified that the Bathroom was substantially completed on March 15, 1999. However, Judy Sersow testified that the Bathroom’s tub leaked when it was drained. Judy Sersow testified that the leak flooded the Bathroom. Robert Sersow testified that the tub had to be replaced three times. Robert Sersow testified that his mother is afraid to use it.

9. Mrs. Sersow testified that she received an invoice from the Respondent on or about March 15, 1999. See Complainant’s Exhibit 3. Mrs. Sersow testified that the Respondent requested a final payment of $1,140.00 for the remodeling of the Bathroom. Mrs. Sersow testified that she refused to pay the invoice because the remodeling of the Bathroom was substandard. Mrs. Sersow further testified that she was angry because she had to wait over eight months for the Respondent to complete the Bathroom remodeling job when it should have taken four to six weeks to complete.

10. On or about March 15, 1999, Complainant Judy Sersow filed a Complaint with the Registrar of Contractors (“ROC”). On or about March 18, 1999, ROC Inspector Mechsner scheduled a jobsite inspection for April 9, 1999 at the Home. The Respondent did not appear for this inspection.

11. On or about April 15, 1999, ROC Inspector Mechsner issued a Corrective Work Order ("CWO") to the Respondent requiring the following corrective action:

1. Vanity end panel is too tall, lifting countertop up off of face frame. Contractor to correct by appropriate means.

2. Wall to ceiling joint above the tub bows ¾” in 5’. Contractor shall correct by appropriate means.

3. Painting, walls, ceiling, base have runs, “holidays”, drips on cabinet face frames, unsightly patches. Contractor shall correct by appropriate means.

4. Tile floor: Grout joint at vanity too large and out of square. Tile cuts at casing, too large and unsightly. Contractor shall correct by appropriate means.

5. Cabinets: Corner unit not plumb at wall, joint in veneer has gap, door warped. Contractor shall correct by appropriate means.

6. Toilet supply valve, not on contract. Contractor shall correct by appropriate means.

7. Cultured marble: Tub panel not installed. There are several scratches on surface. Contractor shall correct by appropriate means.

8. Bath window: Due to marble installation window will not operate or lock. Contractor shall correct by appropriate means.

9. Tub has chips on edge. Contractor shall correct by appropriate means.

10. Laundry room vinyl floor tile scratched during construction. Contractor shall correct by appropriate means.

11. Darkroom closet was corrected by homeowner prior to jobsite meeting.

12. West brick wall of house has hole in brick. Contractor shall correct by appropriate means.

13. Site clean-up done by homeowner prior to jobsite meeting.

See CWO, dated April 15, 1999.

12. At the hearing in this matter, ROC Inspector Mechsner testified that he inspected the Bathroom on April 14, 1999. Inspector Mechsner testified that the Bathroom’s vanity end panel was too tall causing the countertop to lift off the face of the frame. See Complainants’ Exhibit 1 (picture). Inspector Mechsner testified that the installation of vanity end panel and countertop did not meet industry standards. Inspector Mechsner further testified that the wall to ceiling joint above the tub bowed ¾ of an inch in a five foot span. Inspector Mechsner testified that this joint did not meet industry standards.

13. Inspector Mechsner testified that the Respondent’s painting workmanship in the Bathroom was “unprofessional” and “amateurish”. Inspector Mechsner further testified that the gap between the floor tile and cabinet was an inch wide and filled with grout. See Complainants’ Exhibit 2 (pictures). Inspector Mechsner testified that this did not meet industry standards.

14. Inspector Mechsner testified that the Respondent did not properly install the Bathroom’s cabinets. Inspector Mechsner testified that the cultured marble tub panel was not installed at the time of his inspection. Inspector Mechsner testified that the new tub was chipped. Inspector Mechsner testified that it appeared that the laundry room vinyl floor was scratched during the remodeling of the Bathroom. Inspector Mechsner testified that the scratching was not normal wear and tear. Inspector Mechsner testified that it appeared that something heavy had been dragged over the laundry room floor. The laundry room is located near the Bathroom.

15. Inspector Mechsner testified that the Bathroom window did not function or lock correctly because the Respondent improperly installed the marble panel on the wall. In essence, some of the marble must be removed to allow for the installation of the window handle. Inspector Mechsner testified that there was also a hole in the west brick wall of the Home. See Complainants’ Exhibit 2.

16. Inspector Mechsner testified that the Respondent’s aforementioned work at the Home’s Bathroom was not within industry standards. Inspector Mechsner testified that the Respondent had 15 days to complete the corrective work listed in the CWO. Inspector Mechsner testified that 15 days was a reasonable amount of time to complete the corrective work. Inspector Mechsner testified that the Respondent never requested an extension of time to complete the CWO’s items.

17. Inspector Mechsner testified that the Respondent had to remove the Bathroom wall to install the tub. Inspector Mechsner testified that a gas line behind the wall had to be moved. Inspector Mechsner testified that he was concerned that the Respondent had failed to obtain the proper permits from the City for the remodeling of the Bathroom. Inspector Mechsner testified that the bathroom should have been inspected for electrical, gas and plumbing.

18. Based upon the testimony of Inspector Mechsner, the undersigned Administrative Law Judge finds that the work performed by the Respondent at the Home’s Bathroom was unprofessional and did not meet minimum industry standards. The undersigned Administrative Law Judge further finds that the Respondent’s workmanship was poor and substandard. The undersigned Administrative Law Judge finds that the Respondent’s poor workmanship was a wrongful act that has caused substantial injury to the Complainants. The Complainants have not been able to enjoy the full use of their Bathroom since September of 1998.

19. Mr. Brock testified that it was difficult to complete the Bathroom remodeling because the Complainants denied access to the Home on numerous occasions. Mr. Brock testified that the Respondent had to delay construction of the Bathroom because Mrs. Sersow refused access to the Home for extended periods of time due to health problems. Mrs. Sersow testified that she was seriously ill (requiring hospitalization) in September of 1998 and September of 1999. However, Mrs. Sersow testified that she never denied access to the Respondent because of her health problems. Robert Sersow also testified that the Respondent was never denied access prior to May 3, 1999 (i.e., the expiration of the CWO’s corrective period).

20. Mr. Brock further testified that the Bathroom project was further delayed because the Complainants repeatedly requested changes in the design of the Bathroom. Mr. Brock submitted one change order, dated October 26, 1998, showing that Complainant Tom Sersow had signed for a change in the Bathroom’s cabinet. See Respondent’s Exhibit H. Mrs. Sersow testified that changes were made only because the Respondent initially had installed or provided substandard materials that did not fit or match in color.

21. Mr. Brock testified that the CWO was issued on or about April 15, 1999. Mr. Brock testified that the Respondent waited until April 21, 1999 to act on the CWO because he was waiting for Mrs. Sersow to respond to a settlement proposal. Mr. Brock testified that he went to the Home on April 17, 1999 to ascertain the status of the settlement proposal. Mr. Brock testified that nobody answered the door at the Home.

22. Mr. Brock testified that Jodi Holgate, the Respondent’s employee, also visited the Home during the 15 day corrective period. Mr. Brock testified that Mr. Holgate told him that Mrs. Sersow looked out the Home’s window and saw Mr. Holgate. Mr. Brock testified that Mr. Holgate told him that Mrs. Sersow refused to answer the door. Mr. Brock submitted a notarized affidavit from Mr. Holgate that substantially corroborates this encounter between Mrs. Sersow and Mr. Holgate. See Respondent’s Exhibit E. However, the undersigned Administrative Law Judge gives little weight to an affidavit that was prepared eight months after the issuance of the CWO. Furthermore, Mr. Holgate was not present at the hearing in this matter to be cross-examined. Mrs. Sersow testified that she heard a knock on the door but never saw Mr. Holgate.

23. Mr. Brock testified that the Respondent sent two employees to the Home on April 27, 28 and 29 of 1999. Mr. Brock testified that one employee was ill on Friday, April 30, 1999. Mr. Brock testified that he contacted the Complainants to explain that his employee was ill and could not return until the following Monday, May 3, 1999. Mr. Brock testified that the Complainants told him not to return to the Home because the CWO’s 15 day corrective period was due to expire on Friday, April 30, 1999.

24. Robert Sersow testified that the Respondent did more damage to the Bathroom during the corrective period. Robert Sersow testified that the Respondent’s crews were unaware of what had to be corrected in the Bathroom. Robert Sersow testified that he had to provide the Respondent’s workers with the CWO. Robert Sersow testified that the Respondent forgot to replace the sand underneath the tub. Mr. Sersow further testified that the Respondent tried unsuccessfully to “patch” paint the Bathroom. Mr. Sersow confirmed that access was denied to the Respondent at the expiration of the CWO’s 15 day corrective period. Mr. Sersow testified that the Respondent already has had over eight months to correctly remodel the Bathroom. Mr. Sersow testified that the CWO’s items 1,2,3,4,5,7,8,9 &10 are still not corrected.

25. The undersigned Administrative Law Judge finds the testimony of Judy and Robert Sersow to be credible. The undersigned Administrative Law Judge finds that the Respondent failed to correct the vast majority of the CWO’s items within the 15 day corrective period. The undersigned Administrative Law Judge further finds that the Respondent’s excuses (for failing to perform the corrective work) are unjustified. The Respondent accepted the risk of waiting until April 27, 1999 to begin the corrective work. Furthermore, the undersigned Administrative Law Judge finds that Respondent’s workers lacked the expertise to perform the corrective work and were not prepared or equipped to perform the corrective work. Finally, the Respondent failed to request a time extension from Inspector Mechsner.

CONCLUSIONS OF LAW

1. The Complainants have the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that insufficient evidence was presented to show that the Respondent has violated A.R.S. §32- 1154(A)(2).

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact ## 10 thru 18.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact ## 10 thru 18.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact ## 24 thru 25.

6. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend or place on probation the Respondent’s Class B license pursuant to A.R.S. §32-1154. The undersigned Administrative Law Judge further finds that grounds exist to impose a civil penalty against the Respondent and to increase the Respondent’s surety bond or cash deposit pursuant to A.R.S. §32-1154(B) & (D).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B license be suspended until the Registrar receives proof that the Respondent has caused a properly licensed contractor to perform remedial work on the following CWO items:

1. Vanity end panel is too tall, lifting countertop up off of face frame. Contractor to correct by appropriate means.

2. Wall to ceiling joint above the tub bows ¾” in 5’. Contractor shall correct by appropriate means.

3. Painting, walls, ceiling, base have runs, “holidays”, drips on cabinet face frames, unsightly patches. Contractor shall correct by appropriate means.

4. Tile floor: Grout joint at vanity too large and out of square. Tile cuts at casing, too large and unsightly. Contractor shall correct by appropriate means.

5. Cabinets: Corner unit not plumb at wall, joint in veneer has gap, door warped. Contractor shall replace and properly install new cabinets. . . . 7. Cultured marble: Tub panel not installed. There are several scratches on surface. Contractor shall properly install tub panel.

8. Bath window: Due to marble installation window will not operate or lock. Contractor shall correct by appropriate means.

9. Tub has chips on edge. Contractor shall replace and properly install a new tub.

10. Laundry room vinyl floor tile scratched during construction. Contractor shall correct by appropriate means. . . . . The properly licensed contractor must obtain all proper building permits from the City and have the electrical, gas and plumbing inspected. It is further recommended that if the properly licensed contractor successfully accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place.

It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of two (2) days, followed immediately by a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of the Order is filed with the Registrar, whichever is later.

It is further recommended, in addition to the above-provided penalties if any, that the Respondent pay the sum of $250 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that the Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. §32-1131(3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending.

Done this day, January 31, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826