ALJDEC

02F-T0123-ROC · Registrar of Contractors · 2002-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2002; at 8:30 a.m. APPEARANCES: The Complainant appeared through his attorney, Thomas Piccioli. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. Respondent’s License was suspended on November 29, 2001. 2. This is a residential matter where the parties first entered into a written contract for the construction of an addition to the Complainant’s residence. During the course of construction, the parties entered into several oral agreements for construction work which the Complainant always paid cash for. The Respondent rarely issued receipts for the money but does not dispute that he received approximately fifty thousand dollars ($50,000.00) in cash from the Complainant during the course of construction. There is no dispute regarding the terms of the written agreement but the parties became embroiled in bitter disputes regarding the terms and conditions of their oral agreements. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete the construction project to his satisfaction, despite repeated requests that he do so. Finally the Complainant filed a formal complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 5. The Respondent failed to substantially comply with the terms and conditions of the written corrective work order. 6. There was no dispute that the base written construction agreement is for $82,500.00 which the Complainant paid the Respondent in full with cash payments. 7. The parties agree that they then entered into several oral agreements for construction work on the Complainant’s residence and that the Complainant would then pay the Respondent in cash for this work. The various oral construction agreements were shown to be as follows: h) There was no dispute that there was an oral agreement for the construction of a 13 foot retaining wall and that the retaining wall has been constructed. The Complainant asserts that the oral agreement was for $13,000.00 and that he has paid the entire sum of $13,000.00 in cash to the Respondent and that he is entitled to a credit of $2,500.00 which the Respondent owes him. The Respondent asserts that the oral agreement for the construction of the retaining wall was for $14,337.00 and that he has already given the Complainant an offset of $1,337.00 for the construction of the wall. There was no credible evidence presented to support a finding that the Complainant’s version of the oral agreement is correct. Respondent’s failure to provide a written agreement for this construction agreement is found to be a violation of A.R.S. §32-1158. i) The parties agree that they entered into an oral agreement for the replacement of 38 feet of underground gas line. The Complainant asserts that the agreement was for $1,875.00 for the gas line work, and that the Respondent charged him twice for the gas line work and that he is entitled to a credit of $1,875.00. The Respondent asserts that the agreed upon price was $2,498.00 and that there is no money due the Complainant. There was insufficient evidence presented to establish Complainant’s version of the oral agreement. The Respondent’s failure to provide the Complainant with a written agreement is found to be in violation of A.R.S. § 32-1158. j) There was no dispute that the parties entered into an oral agreement for the installation of an A/C unit for the new addition for $4,823.00 and that the Respondent completed the work and was fully paid for this work. The Respondent’s failure to utilize a written agreement for this construction project is found to be in violation of A.R.S. § 32- 1158. k) There was no dispute that there was an oral agreement to construct a book case in the living area of the new residence for $1,368.00 and that the Respondent performed the construction work and was fully paid for this work. The Respondent’s failure to utilize a written agreement for this construction project is found to be in violation of A.R.S. § 32-1159. l) There was no dispute that the parties entered into an oral agreement for the “upgrading” of the carpet in the new addition for $2,075.15 and that the Complainant is entitled to a credit in the sum of $599.00 for the original carpet. The work has been performed and the Respondent has been fully paid for his work. The Respondent’s failure to utilize a written agreement for this construction project is found to be in violation of A.R.S. § 32-1158. m) There was no dispute that the parties entered into an oral agreement for the installation of a custom stain grade glass by-fold door and that the work was completed and that the Respondent was fully paid for his work. n) There was no dispute that there was an oral agreement for the installation of ceramic tile in the new bathroom for $2,250.00 and that the work had been completed and that the Respondent had been fully paid for his work. The Respondent’s failure to utilize a written agreement for this construction project is found to be a violation of A.R.S. § 32-1158. o) There was no dispute that the parties entered into an oral agreement for the construction and installation of two arched tempered glass windows. The Complainant asserts that he paid cash for the work and the Respondent failed to perform this work. The Respondent agrees that the work was not performed but asserts that he was not paid for the project. The Respondent shall complete this construction project in accordance with the parties’ oral agreement. The Respondent’s failure to utilize a written agreement for this construction project is found to be a violation of A.R.S. § 32-1158. p) The Complainant asserts that there was one oral agreement for the construction of an entrance porch, front porch, front porch overhang for a total cost of $5,413.00. The Respondent asserts that there were two separate oral agreements: (1) for the construction of the entrance porch for $5,413.00; and (2) for the construction of the front porch and porch overhang for $2,478.00. There was no dispute that the work has been completed and that the Respondent has been paid $5,413.00 for his work. The Respondent’s failure to utilize a written agreement for this construction work is found to be a violation of the A.R.S. § 32-1158. q) There was no dispute that there was an oral agreement for the performance of electrical preparation work in the new residence for $953.00 and that the work had been completed and that the Respondent had been fully paid for his work. The Respondent’s failure to utilize a written agreement is found to be a violation of A.R.S. § 32-1158. r) There was no dispute that the parties entered into an oral agreement for the installation of a 5 ton HVAC system for the existing residence for $6,700.00 and that the work was completed and that the Respondent was fully paid for his work. The Respondent’s failure to utilize a written agreement is found to be a violation of A.R.S. § 32-1158. s) There was no dispute that the parties entered into an oral agreement for the replacement of a gas water heater in the existing residence at a cost of $190.00 and that the work was completed and that the Respondent was fully paid for his work. t) There was no dispute that the parties entered into an oral agreement to replace the kitchen sink tops and under-lay the drainage system at a cost of $367.00 and that the project was completed and that the Respondent has been fully paid for his work. u) There was no dispute that the parties entered into an oral agreement to remodel the existing residence’s living area at a cost of $4,958.00 and that the Respondent completed the project and has been fully paid for his work. The Respondent’s failure to utilize a written agreement is found to be a violation of A.R.S. § 32-1158. v) There was no dispute that the parties entered into an oral agreement to construct two closets for a cost of $5,246.00 and that the Respondent has completed the project and been fully paid for his work. The Respondent’s failure to utilize a written agreement is found to be a violation of A.R.S. § 32-1158. w) There was no dispute that the parties entered into an oral agreement for the application of exterior plastering to the Complainant’s residence for $4,927.00. Credible evidence established that the Respondent’s exterior plastering work displays excessive cracking and fails to comply with applicable workmanship and industry standards. The Respondent shall cause the exterior plastering to be properly repaired or replaced. The Respondent’s failure to utilize a written agreement is found to constitute a violation of A.R.S. § 32-1158. x) The Respondent asserts that the parties entered into oral agreements for (1) the removal and replacement of the existing roof for $6,023.00; and (2) for the reconstruction of an existing closet to a “California” closet for $1,900.00; and (3) for the upgrading of the interior doors and trim for $1,740.12; and (4) the installation of three stain grade by-fold doors for $335.00; and (5) for the installation of exterior laps and flood lights for $505.00; and (6) the installation of down-spouts for $573.41; and (7) for the installation of coating on the Complainant’s roof for $51.36; and (8) for the pre-wiring of the fence wall with underground PVC pipes for $725.00; and (9) the up-grading of the exterior plaster finish to a smooth finish at a cost of $1,600.00; and (10) for the installation of window tinting for $475.00; and (11) for the removal and replacement of wood around the overhang for $3,601.39; and (12) for the “fix-wrap” of the closets for $621.42; and (13) for the installation of carpet in the closet for $217.52; and (14) for the connection of the new bathroom to the sewer rather than the septic tank for a cost of $820.04. The Complainant denies all of these alleged agreements and asserts that this disputed work was performed or should have been performed pursuant to the parties’ written agreement. The Respondent is admonished that if written construction agreements had been utilized then there could be no dispute as to whether the parties had entered into an agreement or not. y) Credible evidence established that the connection of the new bathroom to the sewer system is required by applicable health codes and the local building authority. The Respondent shall, utilizing a properly licensed contractor, cause the new bathroom to be properly connected to the sewer system. 26. The parties’ disputes regarding the amount of money due the Complainant or due the Respondent is found to be a good faith money dispute which will necessarily involve an adjudication of the disputed oral agreements and the disputed amount of cash paid to the Respondent and should be resolved, if at all, by a civil court of competent jurisdiction. 27. The Respondent’s actions, in repeatedly failing to comply with the provisions of A.R.S. § 32-1158, are found to constitute a wrongful act. 28. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B- License be revoked unless the Registrar of Contractors receives proof that the Respondent has properly caused (1) the proper repair or replacement of the exterior plastering on the Complainant’s residence, (2) the proper completion of the two arched tempered glass windows, and (3) the proper connection of the new bathroom to the sewer line. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that, instead, the Respondent’s Class B- license shall be placed on active probation for a period of twenty (20) days and on disciplinary probation for a period of one hundred and eighty (180) days. Done this day, March 20, 2002.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488