ALJDEC

01F-2726-ROC · Registrar of Contractors · 2001-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2001 APPEARANCES: Freddie Nowlin on her own behalf; Respondent did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. Freddie Nowlin (Complainant) experienced a water leak in the master bathroom (the bathroom) of her home located at 10382 E Sahuaro, Scottsdale, Arizona (the Home). 2. Complainant’s insurance carrier covered the damage to the extent of replacement in a like manner. Complainant decided that in addition to having the damage in the bathroom repaired, she wanted to have it remodeled. 3. Complainant obtained a bid from Mel Cox (Mr. Cox), a representative of Tile by Terri (Respondent), to remodel the bathroom for the sum of $10, 200.00. The bid was accepted by Complainant and in March 2001, a contract was entered into between Complainant and Respondent for remodeling of the bathroom. It was agreed that Complainant was to pay Respondent $5,200 at the commencement of the job and pay the balance upon completion. 4. Complainant provided Mr. Cox with a check for $5,200.00 on March 19, 2001, which was cashed by Respondent. 5. Complainant testified that Mr. Cox represented himself to be the owner of Respondent and Mr. Cox also represented that Respondent had performed other similar remodeling jobs. At all times relevant to this matter, Complainant dealt with Mr. Cox on behalf of the Respondent. 6. The bid presented by Respondent and Mr. Cox’s representations led Complainant to believe that Respondent was licensed as a general contractor. 7. The licensing records of the Registrar of Contractors shows that Respondent holds a Class C-48 license and is not licensed as a general contractor. 8. The work itemized in the above-mentioned contract involves work for which Respondent is not properly licensed to perform. 9. According to Complainant, when the above-mentioned contract was entered into, Mr. Cox represented that the work would be completed within ten days. 10. On March 19 and 20, 2001, Respondent’s laborers tore down the bathroom to studs and removed the tub and shower, making the bathroom unusable. 11. Complainant testified that after the demolition of the bathroom, several days went by with no one appearing at the Home on behalf of Respondent, despite Complainant’s attempts to contact Respondent to have the job completed. 12. Complainant testified that Respondent failed to complete the work in accordance with the agreed upon time frame. Complainant also testified that many times Respondent’s laborers failed to show up for work or showed up without materials so that further work could not be performed. 13. The problems Complainant experienced with respect to Respondent’s work on the remodeling job caused her to approach Respondent and modify the contract. Complainant and Respondent entered into a verbal settlement agreement that was, in part, memorialized in an April 18, 2001 document signed by Mr. Cox . According to Complainant’s testimony, the contract was modified so that Respondent would keep the $5,200.00 deposit, Respondent would provide Complainant with all of the material necessary to complete the job, and Complainant would hire another licensed contractor to complete the remodeling of the bathroom. 14. The above-mentioned settlement agreement, executed on April 18, 2001, provided that by the following Saturday, Respondent was to furnish the materials to Complainant. 15. By the following Saturday, Respondent only provided Complainant with three granite slabs, two 36” base cabinets, and approximately one quarter of the travertine tile needed to complete the job. Those materials were not all of the materials Complainant required to complete the remodeling of the bathroom. 16. By requesting restitution, it appears that Complainant has elected to recover her out of pocket expenses in having the original contract completed rather than enforcing the settlement agreement, which Respondent breached by not providing all of the required materials. 17. Complainant testified and provided photographs depicting deficiencies in the work Respondent performed at the Home. 18. Complainant testified that she obtained a bid from Home Renewal, a licensed contractor, to complete the job. Complainant hired Home Renewal to perform that work. 19. Complainant testified that Home Renewal had to tear down and replace all work previously performed by Respondent. Complainant incurred a cost of $10,500.00 in labor for Home renewal to complete the remodeling of the bathroom. Complainant also incurred costs in materials in the amount of $4,945.34 to have the job completed. 20. The evidence of record established that Respondent’s work at the home was not in conformance with industry standards, that the work was structurally unsound, and that improper materials had been used. 21. During the hearing, Complainant did not provide a valuation of the materials she received from Respondent pursuant to the April 18, 2001 agreement. Consequently, the Administrative Law Judge has no way of determining what portion of the $5,200.00, if any, should be refunded to Complainant. 22. The weight of the evidence of record established that Complaint experienced a problem in having Respondent completed the remodeling of the bathroom and underwent an unreasonable amount of time without the use of the bathroom. 23. The Administrative Law Judge took administrative notice of the licensing records of the Registrar of Contractors concerning Home Renewal’s licensing status. The Registrar’s records does not show Home Renewal as having been issued a license. 24. Complainant’s testimony, except for the licensing status of Home Renewal, is determined to be credible. 25. The weight of the evidence of record establishes that Complainant expended a total sum of $15,445.34 to demolish Respondent’s work at the Home and to have the bathroom remodeled as originally intended. 26. Respondent did not present any evidence to refute or rebut the evidence presented by Complainant. 27. The Administrative Law Judge determines that because the evidence of record does not establish that Home Renewal is a contractor licensed by the Registrar of Contractors, the Administrative Law Judge cannot recommend that Respondent provide restitution to Complainant because that would, in effect, be considered aiding and abetting unlicensed activity. CONCLUSIONS OF LAW 1. The weight of the credible evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(7) and (17). 2. The evidence of record does not establish that Respondent violated the provisions of A.R.S. §32-1154(A)(2). . . . . . . . . .

RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter Respondent’s Class C-48 license shall be suspended for one week. Done this day, December 10, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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