ALJDEC

01F-A0191-ROC · Registrar of Contractors · 2001-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 5 June 2001 APPEARANCES: Complainant: Michael O’Brien, President of Markland Builders; Buff O’Brien, wife of Michael O’Brien and Office Manager, Markland Builders, ; Cynthia Bowman, Office Assistant, Markland Builders; Jeanne Michelle, Office Assistant, Markland Builders; Robert Max Lind, Carpenter and Siding Installer, Markland Builders. Respondent: Joe Payne, Managing Partner, J&L Development; Derek Bebout, Supervisor and Carpenter, J&L Development. Others: Bill Houston, Lumberman’s Building Center. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 7 and 11, by failing to pay Complainant in full for certain house siding installation services performed by Complainant.

FINDINGS OF FACT 1. Although there was no signed contract between the parties, Complainant agreed to install siding on a home Respondent was building at 4481 Kearny Drive in Prescott Valley, Arizona. Respondent was to provide the materials. Complainant prepared a written contract executed by Complainant and sent it to Respondent for Respondent’s signature on 18 October 2000, however Respondent never signed it. The contract called for siding the house at $4914, based upon a siding square footage of 3780 sq. ft. at a cost of $1.30 per square foot. The work was begun on 20 October 2000, based upon a verbal agreement, and was substantially completed 3 November 2000. Complainant ultimately received only $1500 from Respondent for siding the house. 2. From the outset, both Complainant and Respondent appeared to be at loggerheads. Respondent did not provide a sufficient enclosure for all the paper trash generated by the siding installation, and consequently paper trash continually blew around the job site. Respondent complained of the wastage in siding Complainant had during installation. Complainant complained that Respondent did not provide him with sufficient caulk (the caulk being a relatively expensive substance, used specifically for the type of siding being installed) to caulk the siding. Respondent complained of the numerous short pieces of siding used to cover the side of the house above the garage. Cliff Frandsen, an inspector with the ROC, examined the workmanship above the garage, agreed that too many short pieces had been used, and recommended that portion of the house be re-sided. Markland agreed to re-side that portion of the house. However, the 10 pieces of additional siding that were needed did not become available until 8 December 2000. The residing was accomplished soon thereafter. 3. Testimony from Mr. Lind and others indicated that there was very little wastage from short cuts on the siding job. Respondent had been very clear to use every piece of siding possible and to put the shorter pieces on the side of the house where it would not show as much. Although there was not much cut wastage, there were some pieces of siding that were damaged in shipment, and had to have the damage cut out, or the whole piece discarded, depending on the extent of the damage. 4. Respondent indicated his calculations for siding the home showed that only 3233 sq. ft. of siding was needed, if you subtracted out all the windows. Complainant countered that it is customary to “measure through” windows, as the extra square footage cost of adding in the window is offset by the extra labor involved in trimming around the window. If windows are not measured through, then an additional charge based on the linear circumference of the window is added. Respondent indicated that he was paid in full for the construction of the home by the home owner.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The ROC’s interest in this matter is regulatory and disciplinary, and the hearing in this matter is not intended to take the place of a court of general jurisdiction in determining the rights and responsibilities of the parties to the contract. The facts in this case are examined in light of their relevance to continued contractor licensure of Respondent and the alleged violations of ARS § 32-1154, specifically:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: . . .

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. . . .

11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars ($750) when due for materials or services rendered in connection with the licensee’s operation as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

In this case, Respondent has admitted that he has been paid in full for the construction of the home upon which Complainant installed the siding. On the other hand, Complainant has provided evidence that Complainant and Respondent contracted (verbally) to have Complainant install the siding. The preponderance of the evidence indicated that the price of $4914 was agreed to by the parties, but that Respondent only paid Complainant $1500 of that amount. The evidence, as presented, leads to the conclusion that Complainant has completed his obligations under the verbal contract in a workmanlike manner, and that the allegations of Respondent that Complainant excessively wasted the siding are unfounded. In fact, the testimony shows that Complainant used as many short pieces as he could, at the Respondent’s request. Any siding shortages encountered on this job seem more likely due to a higher than normal number of pieces being damaged due to shipping, and an insufficient amount of siding being ordered in the first instance. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A)(11) by failing to pay Complainant the remaining $3414 due on the verbal contract for siding services between the parties.

RECOMMENDED DECISION It is recommended that the ROC suspend the license of the Respondent at issue in this case until such time that the ROC receives written proof that Respondent has paid Complainant the remaining $3414 due on the contract between the parties.

Done this day: 25 June 2001 ______________________________________ Maurice McWhirter 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