ALJDEC decisions subject to certification as final

04F-L0027-ROC · Registrar of Contractors · 2004-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2004 at 8:30 a.m. APPEARANCES: The Complainants appeared through Patricia Wikoff. The Respondent appeared on his won 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 C-48 License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into an oral agreement for the Respondent to perform tile work in the Complainants’ residence. 3. Credible testimony and evidence, presented at hearing, established after the construction work had been partially completed the Respondent did prepare some type of written agreement. 4. The Respondent asserted that the proposed written agreement was an accurate rendering of the parties’ oral agreement. The Complainants asserted that the written agreement was not the same as their oral agreement and asserted that they did not sign the written agreement. 5. The Respondent testified that the Complainants lost the only written agreement. The Complainants provided testimony that the only written agreement and two cameras were stolen from the Complainants’ possession. 6. Credible testimony and evidence established that the written agreement is no longer in the possession of either party and that the parties are now in disagreement as to the terms and conditions of their written agreement. 7. The Respondent provided detailed testimony that the parties’ agreement provided as follows: “$15,500.00 for the installation of a tile floor, $1,100.00 for the add on to the Complainants’ patio, the sum of $750.00 for the remodeling of the Complainants’ fireplace, $4,200.00 for the installation of tile countertops in the kitchen, $185.00 for flagstone work, $695.00 for tile work in the bathroom and $75.00 for accent tile in the floor.” For a total of $22,505.00 for construction work on the Complainants’ residence. 8. The Complainants provided testimony that the contract was for: “$15,500.00 for tile work on their floor and the tile work in their kitchen, $1,100.00 for the work on their patio, $895.00 for the work on their fireplace, $85.00 for flagstone work, and $695.00 for work in the bathroom and for a total of $18,275.00. 9. The parties’ monetary dispute basically concerns whether the kitchen tile work was included in the $15,500.00 sum or whether there was a separate oral agreement to do the work for $4,200.00. 10. During the course of construction, the Complainants and the Respondent began to experience repeated conflicts regarding the terms of the agreement and began to have repeated sharp personal confrontations at the jobsite which eventually resulted in the Respondent leaving the jobsite. 11. Complainants assert that the Respondent abandoned the jobsite. The Respondent asserts that the Complainants threw Respondent off the jobsite. 12. The Complainants then filed a formal complaint, against the Respondent, with the Registrar of Contractors. 13. 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 action on the Complainant’s residence. 14. The written corrective work order provides, in pertinent part, as follows: “1. Respondent should properly complete the Saltillo tile installation in the entry closet. 2. Respondent should properly complete the flagstone fireplace hearth installation. 3. Respondent should properly complete the accent tile squares installation. 4. Respondent should properly complete the Saltillo tile installation in the bathroom. 5. Respondent should properly do tile sealer touch-up/repairs as needed. 6. Respondent should properly complete the main entry walkway Saltillo tile installation. 7. With no contract documents available to review and the parties vehemently disagreeing with each other as to the scope of the work, the price of the work and the responsibilities of each party as to the completion of this project, this Inspector recommends that the parties request an Administrative Hearing to settle these disputes.” 15. Credible testimony and evidence, presented at hearing, established that the Respondent failed to comply with the terms and conditions of the written corrective work order. 16. The Respondent’s failure to provide the Complainants with a written agreement in a timely manner prior to the onset of the construction work is found to be in violation of the applicable provisions of A.R.S. §32- 1158. 17. The personal relationship between the Complainants and the Respondent’s qualifying party has deteriorated to the point where it is extremely volatile. Putting these two parties in the same residence without supervision would likely present an unacceptable physical danger to all of the parties involved. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor to perform the corrective action set forth in the written corrective work order. 18. The parties’ dispute regarding the terms of their oral agreement and how much money is due and owing to the Respondent is found to be a good faith money dispute which should be resolved, if at all, by a civil court of competent jurisdiction. 19. The Respondent’s actions, in failing to provide the Complainants with a written agreement in accordance with the provisions of A.R.S. §32-1158, in failing to perform its work in a workmanlike manner and in failing to comply with the terms and conditions of a written corrective work order, are found to constitute a wrongful act. 20. 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 C-48 License shall be suspended unless the Registrar of Contractors receives proof that the Respondent has, utilizing a properly licensed contractor, caused the proper performance of the corrective action set forth in the written corrective work order as set forth above in Finding of Fact No. 14. It is further recommended that if the Respondent, utilizing a properly contractor causes the proper accomplishment of the above described corrective action, on or before the effective date of this Order, then the above provided License suspension not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. Done this day, February 20, 2004.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 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