ALJDEC

00F-2755-ROC · Registrar of Contractors · 2000-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2000. APPEARANCES: Rita and Vlad Biner, Complainants; Seldon “Andy” Holtz, Respondent’s representative; Bob Haldeman, Respondent’s witness; and Joseph Cotten, Registrar of Contractors Building Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Although a Corrective Work Order was issued in this matter, Complainants have consistently refused access to their property for Respondent to complete the work. Such refusal should be considered to be tantamount to correct completion of the work by Respondent under the circumstances of the case. Therefore, I recommend that this complaint be dismissed without further action being taken by the Registrar of Contractors against Respondent’s license. FINDINGS OF FACT 1. On or about March 8, 2000, Complainants and Respondent agreed that Respondent would refinish and repair the wood floor in Complainants’ living room. Respondent’s employees worked at the home gluing down loose boards and sanding and finishing the wood. During the course of the work, Respondent billed Complainants in weekly billings. After receiving the second bill, Complainants disputed the cost. Respondent continued to work on the floor and made corrections to some of the work. When the work was almost complete, Respondent wanted payment before the thresholds were installed. The parties disagreed and the work stopped about March 22, 2000. 2. On May 24, 2000, Complainants filed a complaint with the Registrar of Contractors. In the first job site inspection, Joseph Cotten, Registrar of Contractors Inspector found that five items should be corrected and the homeowner to pay the balance due on completion of that work. 3. Complainants did not allow Respondent to complete the work ordered on the Corrective Work Order. They did not agree they should pay the balance due and they believed that Respondent had two chances to do the work right in the first place and could not do it. This allegation arose from the fact that the Respondent first did the floor and then corrected the stain in the bedroom, an additional job done for Complainants, because it did not look right. Even though Respondent testified that it has consistently been willing to complete the Corrective Work Order and is still willing to do so, Complainants steadfastly refuse to allow Respondent access to the home CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 7. Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. In this regard, the Registrar of Contractors generally allows contractors a reasonable opportunity to complete necessary remedial work. Indeed, Respondent was correcting its own work even during the job to ensure that it met standards. However, when Complainants refused access to the site after the Corrective Work Order was issued, they effectively prevented Respondent from ever reaching a point of completion on the project. Therefore, Complainants cannot establish that Respondent’s work would have fallen short of the minimum workmanship standards or any other violation of the statutes or rules governing the Registrar of Contractors and Respondent’s license. For this reason, it is only fair to Respondent, who was at all times willing to complete the Corrective Work Order, to dismiss the complaint and decline to discipline Respondent’s license. RECOMMENDED DECISION Based upon the foregoing considerations, I recommend that the Registrar of Contractors dismiss this complaint and decline to discipline Respondent’s license. Done this day, December 21, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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