ALJDEC

00F-2138-ROC · Registrar of Contractors · 2000-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25, 2000. APPEARANCES: Complainant was represented by its president and qualifying party, Oscar Trevino. Respondent was represented by it attorney, Richard L. Cobb, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for an administrative hearing on a Complaint filed by the Complainant with the Registrar of Contractors alleging that the Respondent violated the provisions of A.R.S. § 32-1154(A)(7) and (11). 2. A review of the official records of the Registrar of Contractors reveals that the Complainant is the holder of License Number 145351, a Class K-10 dual commercial and residential drywall contracting license, issued by the Registrar of Contractors. 3. Respondent is the holder of License Number 106986, a Class B residential contractor’s license, issued by the Registrar of Contractors. 4. Respondent contracted with Complainant for drywall contracting for three projects: Lot 75 at Los Gatos, Lot 52 at Saguaro Acres and Lot 42. 5. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent owes Complainant the total sum of $24,200.00 for work performed and/or loss profits on the above-mentioned projects.

LOT 75 AT LOS GATOS

6. Complainant and Respondent entered into a verbal contract for Complainant to perform texturing of a residence on Lot 75 for the total contract price of $2,700.00. 7. There is no credible evidence that the parties agreed to a “time plus materials” contract. Rather, the evidence establishes that the parties agreed upon the fixed price of $2,700.00. 8. Late one night, Respondent’s owner and qualifying party, Charles Fratantoni, was driving by the jobsite. He became suspicious and stopped by the residence to investigate. Upon entering the residence he startled Complainant’s owner and qualifying party, Oscar Trevino, who was working. 9. Mr. Trevino asked Mr. Fratantoni for an advance on both this job due to his vehicle having been damaged by gunshots. Mr. Trevino explained that the damage was caused by someone he owed money. Mr. Fratantoni viewed the damaged vehicle. Mr. Fratantoni paid Mr. Trevino $2,000.00 for this job and an additional sum of $900.00 for Lot 52. 10. After receiving the above-mentioned money, Complainant’s appearance at Lot 75 was sporadic at best. 11. Eventually Complainant stopped coming to Lot 75. The texturing was not finished. Respondent then hired Mitch Urban to complete the texturing. 12. When Mr. Urban took over the texturing, 80% of that scope of work had been completed by Complainant. There is credible evidence that Complainant’s texturing work did not meet minimum workmanship standards and had to be corrected by Mr. Urban together with the remaining 20% of the unfinished texturing. 13. The cost of Mr. Urban’s remedial work was $1,000.00. 14. Respondent did not pay Complainant the outstanding balance of $700.00 of the original contract price. 15. Respondent suffered damages as a result of Complainant’s failure to complete the original scope of texturing work for Lot 75 to minimum workmanship standards.

LOT 52 at Saguaro Acres

16. Complainant’s owner and qualifying party and Respondent’s owner and qualifying party together walked each room of this residence for preparation of a bid for texturing. Mr. Frantantoni pointed out various areas needing texturing work. Mr. Trevino gave Mr. Franantoni a bid of $900.00, which was accepted. 17. There is credible evidence that Complainant’s texturing in the residence’s living room was uneven and did not meet minimum workmanship standards. 18. As a result of Complainant’s deficient texturing, the residence had to be repainted twice. 19. Despite having paid Complainant the full contract price to perform the texturing on this project, Respondent was forced to hire Mr. Urban to complete the texturing, which met or exceeded minimum workmanship standards at an additional cost to Respondent.

Lot 42 20. Prior to contracting for the work on Lots 75 and 52 described above, the parties had entered into a written agreement for texturing work to be performed on Lot 42. The contract price was $21,000. 21. As a result of Complainant’s deficient workmanship and repeated disappearances on the Lots 75 and 52 projects, Respondent hired another contractor at an additional expense to complete this project. Under all the circumstances, it is determined that Respondent was justified in its belief that Complainant could not timely and competently perform the contracted scope of work to minimum workmanship standards. It is further determined that Respondent mitigated its damages by timely contracting with another texturing contractor to perform that work.

* * 22. Complainant’s failure to timely perform the texturing work on Lots 75 and 52 substantially injured Respondent. 23. There is insufficient evidence that the parties agreed that Complainant’s compensation on any of these three projects would be measured by “time and materials”. On the contrary, there is credible evidence that the parties agreed upon a fixed contract price for each project. Complainant appears to be attempting to obtain additional money for its remedial work, for which, in these cases, it is not entitled to receive. Complainant is responsible for the remedial work on Lots 75 and at its sole cost and expense.

CONCLUSIONS OF LAW

1. The burden of proof in this matter is upon the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P. 2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P. 2d 756 (App. 1985). Complainant did not satisfy its burden of proof in this matter. 2. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7) and (11) as cited by the Registrar of Contractors. 3. The Citation and Complaint in this matter should be dismissed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed. Done this day, October 16, 2000

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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