ALJDEC

00F-A0426-ROC · Registrar of Contractors · 2001-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2001 (Prescott, Arizona)

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by its Qualifying Party, Steve Wesolowski.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Pat and Kay Slaughter bring this action complaining about the workmanship of Respondent S W Custom Building and Construction, Inc. regarding a garage built for Complainants. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of provisional suspension. FINDINGS OF FACT 1. Respondent is the holder of a class B license (No. 140568) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction of a structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc. (See, Arizona Administrative Code (A.A.C.) R4-9-103.) Steven Wesolowski is Respondent’s Qualifying Party (hereinafter “Respondent” will be used to refer to both Wesolowski and the company.) 2. In March 2000, Complainants hired Respondent to build a garage on their property. The contract price was $8550.00. (Exhibit 4.) The original plans called for a “stick roof.” However, the County Building Inspector would not approve that type of roof and it had to be changed to a truss roof. The parties agreed to modify the contract to include the trusses and several other items, making the new total $11,370.00. (Exhibit 4, back page.) By April 8, 2000, Complainants had paid Respondent $10,670.00, owing $700.00 upon completion of the project. 3. At that point Respondent again tried to adjust the contract price. For reasons that Respondent did not make clear at the hearing, Respondent “recalculated his bid” and wanted to increase the contract price to $15,000.00. (Exhibit 5.) Complainants refused and the relationship between the parties broke down. 4. All that Respondent ever built was the concrete slab. In May 2000, ROC Inspector Cliff Frandsen found that the slab was uneven and unsightly. He issued a Corrective Work Order (CWO) requiring Respondent to correct the concrete. Respondent did a little bit of work on it, but nothing substantial. Eventually, another contractor worked on the floor at Respondent’s direction and Respondent’s financial responsibility. (Exhibits A and B.) However, the floor, although better, is still not within minimum industry standards. As testified by Inspector Frandsen, who viewed it on January 22, 2001, the floor is more level and even, but it is not a proper floor because the substance that was put on to make it flat and even is peeling and chipping. The Inspector thinks that the epoxy finish was not properly applied and is failing. Furthermore, there is still cleanup of excess concrete that is needed. 5. At the same time that the floor was being corrected, Complainants hired a contractor to finish the building, supplying materials and other items to assist the completion. (Exhibits 2 and 3.) This cost Complainants $9,907.85. (Exhibit 1.) Under the circumstances, the Complainants acted reasonably by hiring another contractor. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met that burden. 2. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(3), violation of a rule, namely Arizona Administrative Code (A.A.C.) R4-9-108, by failing to properly build the slab. The slab remains in need of corrective work and Respondent remains responsible for it since the inadequate corrective work done on it by the other contractor was at Respondent’s direction and payment, not pursuant to a contract between Complainants and the other contractor. Respondent must have an appropriately licensed contractor correct the slab deficiencies. 3. The evidence also shows that Respondent has violated A.R.S. § 32- 1154(A)(7), commission of a wrongful act that causes substantial harm, by trying to re-negotiate the contract after the $11, 370 price had been agreed upon, as evidenced by the signatures on the back of the contract (Exhibit 4) under the notations adding the trusses and other items. Respondent agreed to that price and was thus obligated to follow through. Because he did not do so, Complainants spent $9,907.85 to complete the project. Complainants are entitled to restitution in the amount of $9, 207.85, which is the cost of what they paid to complete the project ($9,907.85) minus what they owed Respondent on the contract ($700.00). See, A.R.S. § 32-1156.01. 4. The evidence further shows that Respondent has violated A.R.S. § 32-1154(A)(23), by failing to comply with a properly issued Corrective Work Order. Although Respondent made some minimal effort himself, then hired another contractor to correct the slab, the slab remains deficient. There has been an effort, but no compliance with the CWO. 5. In accordance with the Citation and Complaint issued on August 23, 2000, and A.A.C. R4-9-117, this tribunal has taken administrative notice of and reviewed Respondent’s prior disciplinary record. It shows that Respondent has been licensed in Arizona since 1998 and has never been disciplined. Thus, the appropriate discipline in this matter is to require Respondent to pay the restitution and cause another contractor to correct the slab. If Respondent does not do so, Respondent’s license should be suspended until Respondent does so. The only other disciplinary action that should be taken is a small civil penalty for failure to fully comply with the CWO. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 140568, held by Respondent S W Custom Building and Construction, Inc. be suspended beginning the effective date of the Registrar’s Order until Respondent has paid Complainants $9,207.85 in restitution and caused an appropriately licensed contractor to repair the concrete slab to bring it within minimum workmanship standards. IT IS FURTHER RECOMMENDED that if Respondent completes the corrections and payment of restitution on or before the effective date of the Registrar’s Order, the license suspension shall not take place. IT IS FURTHER RECOMMENDED that, along with any above-provided discipline, Respondent pay a civil penalty of $100.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 payment of any outstanding prior civil penalty is tendered.

Done this 7th day of February 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

. . .

Original mailed this ___ day of February 2001, to:

Michael P. Goldwater ATTN: Joyce Armijo Registrar of Contractors 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