ALJDEC decisions subject to certification as final

06F-2448-ROC · Registrar of Contractors · 2006-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2006 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president and qualifying party, Reginald Ash (“Ash”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. During the course of the instant hearing, James Hemphill (“James”) requested that his wife, Tina Hemphill (“Tina”) be added to the case as a Co-Complainant. Although Respondent objected to said amendment to the caption in this matter, Tina Hemphill was added to the case as Co- Complainant, since she had as much interest in the matter as James.

2. Pursuant to verbal agreement, Complainants retained Respondent to

accomplish a kitchen remodel in their home. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

3. The following salient facts were adduced at the hearing and are important to note:

a. Notwithstanding the fact that the contract in question was over $750.00, the contract was never reduced to writing by the parties. b. According to Tina, the parties entered into the contract on or about March 30, 2006 and Respondent promised to have the project completed within thirty (30) days. She further testified that the contract price was approximately $3,000.00 and Respondent has been paid a total of $2,249.00 for his work on the project. c. Tina testified that Respondent’s work on the project was extremely slow and he constantly asked for additional draws. Notwithstanding the promise of a thirty (30) day completion period and the fact that the project was commenced on or about March 30, 2006, as of early May 2006, the project was still not completed. Sometime in early May, Complainant gave Respondent a deadline of May 5, 2006 to complete the project. Complainants both testified that being without their kitchen for an extended period of time was a very frustrating and aggravating situation. d. According to Tina, as of May 5, 2006 the only thing that had been fully completed by Respondent, was the drywall. The cabinets were onsite but not fully installed and some rough electrical work had been started. e. Complainants discovered certain issues with some of the electrical work started by Respondent, including some degree of sparks that emanated from the 220 electrical plug on one occasion and wiring that was not connected to anything. f. When the work was not completed by Respondent as of May 5, 2006, Complainants ultimately hired another contractor to complete the project. According to Complainants, the subsequent contractor completed the project in one week. g. Although the successor contractor did not appear at the hearing, Complainants testified that the subsequent contractor found deficiencies in some of the work performed by Respondent and these deficiencies had to be repaired, thereby increasing the cost to be paid to the successor contractor. h. Although Tina testified that there were no changes or upgrades in the contract with the successor contractor, evidence of record showed that the successor contractor installed granite countertops for the kitchen. Ash testified that his contract only contemplated plastic laminate countertops and that granite countertops cost significantly more than plastic laminate countertops. i. Sharply conflicting testimony was presented by the parties regarding the issue of who was responsible for the delay in obtaining the cabinets, which were ultimately purchased by Complainants. Ash contends that James initially insisted that Respondent try to find used cabinets and the search for used cabinets took a considerable period of time. James denies ever requesting used cabinets and moreover, claims he never heard of the used cabinet outlet that Ash indicated he was directed to go to. The testimony was such that no basis exists to disbelieve either parties’ version of the facts surrounding the cabinet decision. j. James testified that they paid the successor contractor a total of $4,232.23 to complete the project. k. Ash testified that Complainants kept changing their minds on other aspects of the kitchen remodel project, other than the cabinetry issue, and that explains part of the reason for the delay in getting the project completed. Moreover, Ash denies that he ever agreed to any deadline date for having the project completed. l. Complainants are seeking monetary damages for the costs to hire another contractor to complete the project. However, the instant record is unclear regarding any comparison of the two contracts, since Respondent’s contract was not in writing and there is a clearly a dispute regarding the type of countertop promised by Respondent. In addition, the only documentation supplied by Complainants, in regard to the work performed by the successor contractor, is a proposal dated May 13, 2006, for the installation of the granite countertop, the substrate for the countertop, installation of appliances, and installation of two ceiling fans. The May 13, 2006 proposal shows a cost of $3221.00, including tax, and it indicates it is for labor only.

4. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have delays caused by changes to the contract or difficulty in obtaining materials. In addition, it is not uncommon to have punch lists at the conclusion of the project, which require a contractor to perform remedial work, in order to bring the project within minimum standards for good and acceptable workmanship. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Even if Respondent promised a thirty (30) day completion date, it does not appear unreasonable that the project was still not completed in early May, when it was only commenced on or about March 30, 2006.

5. Regarding Complainants claim for monetary damages, there appears to be a good faith dispute in this regard regarding what, if any, actual damages Complainants may have sustained. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate such a monetary claim for damages. Thus, in the event Complainants continue to believe that they have suffered monetary damages attributable to Respondent’s work on the project, such a claim should be brought before a civil court of competent jurisdiction.

6. The instant record is found to be insufficient to support any finding that Respondent’s conduct on the kitchen remodel project rises to the level of a violation of the applicable charged sections of the State’s Contracting laws. Thus, Complainants failed to sustain the requisite burden of proof on the issues brought in the instant Complaint.

CONCLUSIONS OF LAW

1. Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainants failed to sustain their burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 06-2448), together with the Complaint upon which it is based, be dismissed.

Done this day, December 13, 2006.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 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