ALJDEC

01F-1903-ROC · Registrar of Contractors · 2001-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2001 at 9:00 a.m. APPEARANCES: Complainant Cheryl Loudermilk appeared through Kevin M. Judiscak, Esq.; Respondent Patrick Alan Green dba Desert Vistas Landscape and Design appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the issue of whether Respondent had violated A.R.S. § 32-1154.A.1, .7, .11, .17, .23, or .3 in his construction and renovation of landscaping, walls, and asphalt driveways at Complainant’s residence. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Registrar of Contractors. FINDINGS OF FACT Background/Uncontroverted Facts The Registrar issued License No. 119110, Class C-21, to Respondent, Patrick Alan Green dba Desert Vistas Landscape and Design, on December 2, 1996. One of Complainant’s employees recommended Respondent for extensive renovation to the large yard surrounding her residence, which is situated on a 1¼-acre lot. In approximately June 2000, Respondent discussed the renovation and assured her that he was licensed to perform or subcontract to another appropriately licensed contractor all work involved, including resurfacing and expansion of asphalt area and construction of a block wall around the property with an electric gate. Complainant did not talk to or solicit bids from any other contractor. On June 6, 2000, Respondent gave Complainant a proposal that provided as follows: Landscape & landscape renovation 24,605.00

Reconfiguration of drive Additional parking asphalt 4,233.33

Security gate and keypad Security fencing 8,406.00

Additional block walls 3,500.00

Tree removal 5,520.00

The form proposal included the printed language, “[T]he above work to be performed in accordance with the drawings and specifications submitted for above work and completed in a substantial workmanlike manner for the sum of,” followed by a handwritten note “down payment % . . . $46,264.33” and “Down payments are to be 1/3 to ½ to start construction specific to contractor and sub-contractor.” On June 6, 2000, Complainant signed Respondent’s proposal and gave him three checks, made payable to him personally, for $12,336.10, $20,005.12, and $16,170.62, a total of $48,511.84, to begin work. Respondent subsequently entered into subcontracts with Specialty Concrete Construction, American Fence Company, Acme Asphalt, and others to perform his contract with Complainant. The concrete subcontractor, Specialty Concrete Construction, later told Complainant that it would not work with Respondent unless she agreed to pay it directly. Complainant tried to discuss Specialty Concrete Construction’s demand with Respondent, who got angry and refused to discuss it. With Respondent’s permission, on July 11, 2000, Complainant paid Specialty Concrete Construction $8,903.50 on July 11, 2000 and $4,525.00 on July 20, 2000 for work performed at her residence pursuant to its subcontract with Respondent. On July 25, 2000, Complainant paid Respondent $25,467.56 for subcontractors’ continuing work at her residence. The asphalt subcontractor, Acme Asphalt, later told Complainant that it would not work with Respondent unless she agreed to pay it directly. Complainant attempted to discuss Acme Asphalt’s demand with Respondent, but he refused to discuss the matter. On September 25, 2000, Complainant paid Acme Asphalt $16,325.00 for work performed at her residence pursuant to its subcontract with Respondent. In January 2001, Complainant learned that American Fence Company had asserted a lien against her property. Respondent did not satisfy the lien.

After retaining an attorney to represent her interests,[1] on April 10, 2001, Complainant paid American Fence Company $13,150.64 to extinguish its lien. Complainant testified at the hearing that the amount she paid to extinguish American Fence Company’s lien was comprised of the following: (1) $10,288.00 in principal, including sales tax; (2) $1,245.34 in interest; (3) $250.00 for a lien recording fee; (4) $1,170.50 in attorney’s fees; and (5) $96.83 for a legal research fee.[2] At some point, Complainant paid $2,600.00 to Paul’s Custom Lawn to have the holes and ditches that Respondent left in her yard covered and waterlines restored to sprinklers. Complaints to the Registrar In early 2001, Complainant made a complaint to the Registrar against Acme Asphalt’s contractor’s license, which the Registrar designated No. 01-1735. On January 23, 2000, Complainant made a complaint to the Registrar against Respondent’s contractor’s license, alleging that the driveway did not drain adequately in one area, that water drained into the garage, and that Respondent had failed to pay American Fence Company, resulting in a lien against Complainant’s property. On the complaint form, Complainant indicated that the contract amount was $98,000.00 and that she owed nothing to Respondent. Respondent was informed of the complaint and responded as follows:

As I understand the complaint verbally explained to me in phone conversations that I have had with you, the complaint centers around a lien placed on the property of 2132 E. Missouri Ave. by American Fence for lack of final payment by Desert Vistas resulting from a lack of final payment to Desert Vistas from the Loudermilks, who claim that they have paid me “enough” (me as Desert Vistas) and that Desert Vistas should pay the debt owed to American Fence for products and services supplied by American Fence to enrich the residential property of the Loudermilks.

Desert Vistas entered into a verbal contract with the Loudermilks to enhance the property of the Loudermilks’ residence via landscaping after or including specific requests of priority:

1) Removal of trees in the front property. 2) Flagstone or flagstone texturing of front walk to front door, front walk to pool area, patio and walk areas around pool. 3) Re-texturing of Kool deck around pool. 4) Additional walk on the backside of the house. 5) Privacy and security issues on front property. 6) Large addition of asphalt in the back property. 7) Additional asphalt and reconfiguration of front drive.

The agreement took the form of Desert Vistas acquiring bids from licensed, bonded, and insured contractors to sub-contract the various priorities requested. Desert Vistas presented the Loudermilks with bid prices on a plain white sheet of paper the bids received by Desert Vistas were by two forms; typed bids on company letterhead or company forms, and by numbers jotted down on scratch paper from phoned in bids.

Line by line, job by job, contractor by contractor, the bids were shown and expressed to the Loudermilks for each job separately with no grand total expressed in written form. The priorities were met, the numbers for the bids were accepted, the job was going to be fast tracked without a formal set of plans and Desert Vistas would be compensated by time and material until the priorities were met and a completed set of plans including the landscape section were presented. At this point the landscaping section would be adjusted to meet the Loudermilks’ needs and a bid price offered. Again, let it be stated no grand total was expressed or agreed to. This is also reflected in the fact the only bid that stated the original price the [sic] was adherd [sic] to was the tree removal bid. All other changed as the scope of work changed as the job progressed, and thus the costs increased. There was also no completion date stated. That to [sic] would have changed due to changes in the scope of work.

Now turning to the issue of paying the sub-contractors. Subs were paid their initial working capital and progressive payments were made. Final amount payments were sometimes difficult to meet due to the numerous trips out of town and the extended stays made by Mrs. Loudermilk. Some final payment checks were paid to the subs by the Loudermilks which the subs pick-up at the Loudermilks’ place of business.

Three times during the construction process I met with the Loudermilks. Each time checks were issued to me to continue with the project. At no time was the job costs questioned. At no time was I asked or demanded to stop and to be accountable, if there was a problem I was not made aware of one. The Loudermilks were given copies of all invoices paid and checks or money orders by which they were paid. By this manner the Loudermilks were kept informed of the costs of their construction priorities. And at no time was a change in scope of the construction and its additional cost initiated by Desert Vistas without the full consent of the Loudermilks. As the scope of work changed and increased so to [sic] did the time and material increase to Desert Vistas.

Desert Vistas has 606 hours[3] invested as well as other costs associated with the Loudermilks project. Desert Vistas also makes a demand for payment of what is owed to American Fence by the Loudermilks for the enrichment of their residential property. [Emphasis in original; footnote added.]

On February 13, 2001, the Registrar’s Inspector Dan Lafond in Case No. 01- 1735 directed Acme Asphalt as follows: Complaint 1. Water runoff is directed into the garage and the rear porch from asphalt driveway. Per jobsite agreement, contractor to correct by appropriate means.

Complaint 2. Ponding water in the driveway. Contractor to correct by appropriate means.

Inspector Lafond performed a jobsite inspection on Complainant’s complaint against Respondent’s license and, on March 2, 2001, directed Respondent to perform the following corrective action within 15 days: Complaint 1. Water runoff from the newly refinished asphalt is directed into the garage. Contractor to correct by appropriate means.

Complaint 2. Ponding water in the driveway south of the southeast corner of the garage. Contractor to correct by appropriate means.

Complaint 3. Contractor failed to pay American Fence for services provided causing American Fence to file a mechanic’s lien against the property. Contractor to correct by appropriate means.

On March 15, 2001, Acme Asphalt notified Complainant of its intent to repair the driveway. As of the date of the hearing in Complainant’s complaint against Respondent’s license, she had not requested a hearing on her complaint against Acme Asphalt’s license because she felt there was a good possibility that it would resolve her complaint. On March 20, 2001, Complainant requested an administrative hearing on her complaint against Respondent because “American Fence has not been paid” and Respondent “had received money from us for American Fence, which he has spent or has in his possession.” On May 9, 2001, the Registrar issued a Citation and Complaint against Respondent’s contractor’s license, charging violations of A.R.S. § 32- 1154.A.1, .7, .11, .17, .23, and .3. Respondent timely answered the Citation and Complaint, as follows: In addressing the complaint to the best of my knowledge the water problem has been corrected. Secondly, the money owed to American Fence is the responsibility of Cheryl Loudermilk. Thirdly, Cheryl Loudermilk has violated the agreement by contracting out work with no notification to me. My license should not be revoked because I have done nothing wrong. I also had completed all of the Loudermilks’ original demands as agreed to.

The Registrar issued a notice of hearing in due course and a hearing was held in the Office of Administrative Hearings on August 24, 2001. Respondent appeared, testified on his own behalf, and offered into evidence two exhibits, including one exhibit comprised of copies of all the documents in his job file. Complainant appeared through her attorney, testified on her own behalf, and offered into evidence five exhibits. Inspector Lafond also testified. Additional Evidence Presented at the Hearing Complainant Complainant testified that Respondent told her that the total contract price would be twice the down payment shown on his June 6, 2000 proposal, or $92,528.66. She later agreed to an additional $6,800.00 payment to Acme Asphalt for additional work, making the total contract price $99,328.66. This amount stretched her budget. She never would have agreed to an open- ended or uncertain contract price. Complainant testified that Respondent wrote down the subcontractors’ bids on a white piece of paper, with a total of $92,528.66 shown at the bottom, before he gave her the June 6, 2000 proposal showing half that amount. Respondent told her the project would not cost any more than $92,528.66 unless she specifically approved increases. Except for the $6,800.00 increase to Acme Asphalt, Complainant testified she did not consent to any increase in payment to subcontractors or in the price of the job. Respondent did not, before or at the time of contracting, provide copies of his subcontracts, but instead provided these copies after the dispute arose and he had ceased work on the project. Complainant testified that she assumed that Respondent’s overhead and profit was included in the amounts he quoted for the subcontractors’ work. Respondent never told her that he would charge and she never agreed to pay Respondent an hourly rate for supervising subcontractors or performing other work on the project. Complainant testified that, when American Fence Company first told her it would lien her property if it were not paid, she called Respondent. Respondent told her not to worry because he had money in a savings account to pay American Fence. Only after the lien attached did Respondent refuse to pay. Respondent Respondent testified consistently with his response to the complaint and answer to the Citation and Complaint. According to Respondent, the June 6, 2000 proposal included just the subcontractors’ requirements for money to start work. This amount was one-half to one-third the full bid amount. Additional work increased some of the subcontractors’ prices. For example, although Acme Asphalt’s initial bid was approximately $11,700.00 (Respondent lost the original bid), its final price was $26,600.00. Respondent testified he wrote the subcontractors’ initial bid amounts on a plain sheet of paper, without showing any total. He no longer had this sheet of paper. Respondent also testified that, when he walked the property with Complainant to discuss the scope of the job, before preparing his June 6, 2000 proposal, he informed her that he would charge $30.00/hour for his time plus the costs of materials incorporated into the job. Complainant’s house was built in 1952 and its yard contained an antiquated irrigation system and a buried gas line of uncertain vintage. These conditions made the job impossible to bid accurately. Respondent testified that Complainant did not care whether the final price was one-half or one- third the bid amounts or if the final cost of the job was $99,000.00 or $140,000. Respondent testified he informed Complainant of all bid increases over the telephone and she orally approved each one. None of the changes were commemorated by a writing. Respondent did not provide any copies of subcontractors’ bids to Complainant until after he received her fourth and final check on July 25, 2000. Respondent did not provide Complainant with and did not provide in the hearing any accounting to substantiate claimed expenses or monies still owed. Respondent testified that he worked 40 hours/week on Complainant’s project. He did not keep time sheets or submit bills to Complainant for this time, but testified that Complainant owed him $9,000.00 for his time and materials on the project. Respondent testified he never told Complainant that he would pay American Fence Company after it threatened to assert a lien against Complainant’s property. Respondent admitted that American Fence Company’s contract was with him, not Complainant, but testified he does not owe anything to American Fence Company because Complainant has not paid him in full. Respondent testified that he did not use any of the money Complainant gave him for his own expenses, wages, or profit. During the time he worked on Complainant’s project, he did not work on any other construction projects but worked 15-20 hours/week for a freight company to earn the money he lived on at this time. Respondent initially testified that he put all the monies he received from Complainant in his business account, segregated from the monies he used for his personal expenses. After Complainant’s attorney pointed out that copies of checks, which Respondent offered into evidence, payable to subcontractors were drawn on Respondent’s personal account, Respondent admitted that some of the money Complainant paid him was deposited into his personal account. Respondent testified that he has subcontracted similar work to appropriately licensed subcontractors on many prior jobs. He had a copy of the Statutes and Rules for licensed contractors in Arizona, albeit a somewhat outdated version. Respondent was familiar with the scope of his C- license, but did not believe that he contracted beyond the scope of his license in entering into subcontracts with the subcontractors on Complainant’s project. Respondent testified that he relied on Acme Asphalt to correct the workmanship problems identified on Inspector Lafond’s directive. Acme Asphalt had promised him to take care of problems and told him they would deal directly with Complainant. Since Acme Asphalt’s license also was at stake, Respondent believed he could trust it to take care of problems. In addition, Respondent felt he could not return to the jobsite to perform corrective work because he had received a cease and desist order from the Registrar. Inspector Lafond Inspector Lafond inspected the landscaping project at Complainant’s residence on February 2, 2001. Respondent, Complainant, representatives of Acme Asphalt, and another of the Registrar’s inspectors were present at the inspection. Inspector Lafond performed a water test on the driveway in the two areas Complainant complained about and observed ponding in both. Inspector Lafond returned to the jobsite later on the same day and observed that the ponding was still present. Although both contractors indicated that an overlay had been installed on an existing driveway, Inspector Lafond ascertained that asphalt had been poured on dirt areas that had been improperly graded, which caused the ponding. This indicated a failure to meet applicable workmanship standards and cause to issue a directive to both contractors. Inspector Lafond performed a prehearing inspection on the morning of the hearing. Complainant indicated that, although some ponding still occurred on the driveway, Acme had performed some corrective work, which Complainant accepted. The driveway still drained into the garage, however, which showed that neither Complainant nor Acme Asphalt had complied with this portion of the Registrar’s directive. To correct this condition would be a relatively minor repair, especially compared to the amount of work that had been completed on the project. Inspector Lafond testified that the fence that American Fence Company constructed at Complainant’s property was a block and wrought iron fence around the perimeter of the property. American Fence Company also installed an electric security gate. The work that Respondent subcontracted to American Fence Company was outside the scope of his C-21 license. Inspector Lafond testified that the paving work that Respondent subcontracted to Acme Asphalt also was outside the scope of his C-21 license. Mitigation and Aggravation The Citation and Complaint notified Respondent that, if he were found to be in violation of any statute, the Registrar might consider its prior disciplinary record of final agency orders in mitigation or aggravation. Notice is therefore taken of the Registrar’s official records, which show that, if he accepts this recommended decision, it will be the only final order against Respondent on the Registrar’s current record. But the record also shows that Respondent’s contractor’s license was suspended at the time of hearing for nonrenewal and the evidence shows Respondent lacks candor or professionalism. CONCLUSIONS OF LAW Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[6] Knowingly Contracting Beyond the Scope of License (A.R.S. § 32- 1154.A.17)[7] Respondent’s C-21 Landscaping & Irrigation Systems license allowed him to do the following: Preparation and alteration of land for horticulture and aboriculture. Installation of irrigation systems and controls. Carpentry is limited to decorative fences and screens, planter boxes, and plant tubs common to the industry. Excluded are retaining walls over 3 feet, decorative walls or fences over 6 feet, perimeter walls, fences, and load bearing slabs and walkways.

The perimeter walls that American Fence Company constructed and the asphalt that Acme Asphalt poured at Complainant’s residence is outside the scope of Respondent’s C-21 license.[8] “’Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.”[9] “’Knowingly’ means, with respect conduct or circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.”[10] It has long been the law in Arizona and elsewhere, however, that “’[n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”[11] Respondent’s defense to the charge of contracting beyond the scope of his C- license is based more on willful ignorance or indifference than the kind of inquiry one would reasonably expect a licensed professional to perform. The evidence establishes that Respondent knowingly contracted beyond the scope of his C-21 license in subcontracting construction of the perimeter fence and electric security gate to American Fence Company and subcontracting the asphalt work to Acme Asphalt. Abandonment of the Contract under A.R.S. § 32-1154.A.1[12] and Failure to Pay under A.R.S. § 32-1154.A.11[13]

Applicable statute required Respondent to memorialize in writing his contract with Complainant to perform substantial work at a substantial cost at her residence, including the estimated date of completion, a description of the work to be performed, the total dollar amount Complainant was to pay for all work, the dollar amount of any advance deposit, and the dollar amount of any progress payments to be made.[14] Respondent prepared no such written contract. The evidence of Complainant’s understanding of the contract is somewhat inconsistent. For example, she testified that she believed that the total cost of the job would be $99,328.66, but her statement of claim sets the contract amount at $98,000.00. According to the proposal, the down payment to start work would be $46,264.33, but on the same date as the proposal Complainant gave Respondent checks totaling $48,511.84. Respondent’s testimony that Complainant did not care how much the project cost, that she agreed to pay him 40 hours a week at $30.00 per hour, without time sheets or invoices, and that he did not keep for his own personal use any of the money Complainant gave him is incredible. “Ordinarily when a contractor makes a contract calling for performance of a job, in accordance with a certain plan, if nothing is said in regard to what shall be done in case he finds the work necessary to conform to the plan is for any reason more difficult or expensive than either party had anticipated, he must bear the cost of the excess of the contract price.”[15] Although the evidence does not establish that any real meeting of the minds ever occurred between these parties or allow the Administrative Law Judge to liquidate fully an agreed-to contract amount or Complainant’s damages, it appears that Respondent led Complainant to believe that the cost of the work at issue would be approximately $100,000.00. Respondent’s alleged failure to receive any personal benefit from the contract is immaterial. To date, Complainant has paid $117,192.52, plus attorney’s fees. The evidence also establishes that the parties agreed that Respondent would subcontract the fence and gate work to American Fence Company and pay for that work with the money he received from Complainant. Respondent never paid American Fence Company and, as a result, Complainant had to pay it $13,150.64 to it to extinguish its lien. In failing to pay American Fence Company, after Complainant had paid him, Respondent violated A.R.S. § 32-1154.A.1 and .11. Causing Another to Suffer Substantial Injury under A.R.S. § 32- 1154.A.7,[16] Violating a Rule Adopted by the Registrar under A.R.S. § 32-1154.A.3,[17] and Failing to Take Appropriate Corrective Action under A.R.S. § 32- 1154.A.23[18]

Respondent did not dispute that water draining into Complainant’s garage evidenced poor workmanship and had not been corrected, although Inspector Lafond had directed him to correct it. Because he contracted to have this work performed, he is as responsible as Acme Asphalt that it be performed in a professional and workmanlike manner, even if such work is beyond the scope of his license. The evidence therefore shows that Respondent violated A.R.S. § 32-1154.A.3, .7, and .23 in failing to correct the ponding on the asphalt in front of Complainant’s garage. Respondent admitted that he had not taken any steps to extinguish American Fence Company’s lien. The evidence therefore establishes that Respondent violated A.R.S. § 32-1154.A.23 by failing to comply with Inspector Lafond’s March 2, 2001 directive. Because Complainant had to pay this money, when it was Respondent’s contractual responsibility, he also violated A.R.S. § 32- 1154.A.7 in failing to pay American Fence Company. The evidence finally shows that Respondent violated A.R.S. § 32-1154.A.3 in his unprofessional and haphazard approach to contracting, in failing to set forth the parties’ original agreement in writing, and in failing to keep the kind of records that would allow the cost of the project to be liquidated, regardless of the terms of the contract. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages, which must be recovered, if at all, through civil court action. The legislature has empowered the Registrar to impose reasonable conditions that may serve to reduce or eliminate any otherwise appropriate disciplinary penalties for proven violations of contracting laws, however, if the performance of corrective or remedial measures on a jobsite is no longer possible.[19] An award of restitution in an administrative action avoids requiring a Complainant who has sustained the burden of proving contracting law violations to await the outcome of protracted civil litigation to recover even a portion of a demonstrated loss. An award of restitution also allows a licensed contractor to control, at least to some extent, the severity of a disciplinary penalty. Any amounts paid in satisfaction of a condition in the nature of restitution affecting licensing should be credited against any civil judgment ultimately obtained in favor of either party. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar revoke Respondent Patrick Alan Green’s License No. 119110, Class C-21 on the effective date of the Registrar’s order, thirty-five days after service. It is further recommended that no revocation take place if, prior to the effective date of the order, Respondent provides proof to the Registrar in writing that (1) Respondent has paid Complainant Cheryl Loudermilk $13,150.64 to reimburse her for the costs she incurred in extinguishing the lien that American Fence Company asserted against her residence for a debt that was Respondent’s contractual responsibility; and (2) Respondent has caused Acme Asphalt, or paid another appropriately licensed contractor in advance, to correct the condition of the asphalt in front of Complainant’s garage that results in ponding and drainage of water into the garage. If Respondent provides such written proof, the Registrar may close Complaint No. 01-1903. It is further recommended that the Registrar’s order be without prejudice to Complainant seeking additional consequential damages from Respondent for breach of contract in a court having appropriate civil jurisdiction. Done this day, August 29, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of August, 2001, to:

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

By ___________________________ ----------------------- [1] Copies of correspondence provided to the Registrar indicate that the lien was satisfied after American Fence Company’s attorney pointed out to Complainant’s attorney that, although American Fence Company had no direct contact with Complainant under A.R.S. § 33-420, Complainant was not an “owner-occupant” of the property entitled to protection under A.R.S. § 33- 1002 because title to the property was held in the name of a family trust, not a “natural person.” No evidence was presented or argument made at the hearing that the lien was wrongful or invalid.

[2] These amounts total $13,150.67, three cents more than the amount of Complainant’s check. The Administrative Law Judge could not resolve the apparent discrepancy. [3] If these claimed hours were multiplied by $30/hour, the rate Respondent testified Complainant agreed to pay him, the result would be $18,180.00, far more than the $9,000.00 that Respondent testified at the hearing was owed him. Respondent testified he has received nothing for his work or time. The record does not allow the Administrative Law Judge to resolve the discrepancy. [4] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[6] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [8] See Piper v. Bear Medical Systems, Inc., 180 Ariz. 170, 176, 883 P.2d 407, 413 (App. 1994) (“In a statute, ‘the expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed.’” Quoting Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982)); see also A.R.S. §§ 32-1101.A.3 (defining contractor as anyone who through others, or directly or indirectly supervises others” to perform construction), 32-1102.4 (license classification of general residential contracting license), 32-1102.7 (license classification of specialty residential contracting).

[9] A.R.S. § 1-215.

[10] A.R.S. § 13-105(6)(b).

[11] Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 215 P. 1036, 1038). [12] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

[13] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .”

[14] See A.R.S. § 32-1158.A. [15] Gillespie Land & Irrigation Co. v. Hamilton, 43 Ariz. 102, 113-14, 29 P.2d 158 (1934).

[16] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[17] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

[18] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar.” [19] See Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 440-41, 803 P.2d 430, 433-34 (App. 1990).

-----------------------

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