ALJDEC decisions subject to certification as final

06F-T1245-ROC · Registrar of Contractors · 2007-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5th, 2007; 9:00 a.m. APPEARANCES: Complainants, Mr. Michael Ewing and Mr. David St. Marie, appeared and represented themselves. Respondents Twin Peaks Construction, Inc. of Nevada and Bar Kat Construction, LLC, were represented by Ms. Brenda Lee, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of these consolidated matters was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Twin Peaks Construction, Inc. of Nevada, has three licenses currently appearing on the Arizona Registrar of Contractors’ website. Twin Peaks’ Class B License number 194275 was suspended for non-renewal on April 1st, 2006. Then, on December 1st, 2006, Twin Peaks, Class A License number 179265, was also suspended for non-renewal. Then, on February 2nd, 2007, the third license issued to Twin Peaks, Class KB-01 License number was revoked by the Registrar in Case No. S05-0023 for failure to pay a civil penalty in the amount of $350.00. All three of these delinquent licenses have on them Mr. Nathan Leon (or Leno) Barnett as their Qualifying Party. 2. The other Respondent in these consolidated cases, Bar Kat Construction, LLC, has two licenses issued by the Arizona Registrar of Contractors, both of which are current. They are Class KB-01 License number 216220, and Class A License number 216221, both issued on April 11th, 2006. Both of these licenses also have Mr. Nathan Leon (or Leno) Barnett as their Qualifying Party. 3. Complainants in these consolidated cases, Mr. Michael Ewing and Mr. David St. Marie, are business partners, and these several Complaints were filed by them relative to construction work performed by the Respondent at the Complainants’ business located in Tubac, Arizona. Case Nos. T06-1244, T06-1244W, and T06-1245, were filed by Mr. Ewing and concern the job site address of 2174 W. Frontage Road, Tubac, Arizona. Case Nos. T07-0114 and T07-0115 were filed by Mr. St Marie and concern a smaller job, the nearby wash crossing on Tubac Canyon Road. 4. The major job site is the Garrett Ranch House, an old structure which the Complainants were endeavoring to restore. All parties claim there was a contract between them somewhere, but while documents were produced which were offered as contracts, the parties accused each other of offering documents bearing forged signatures, and denied the validity of the documents as contracts. The record contains no credible evidence of any valid, signed contract which contains the agreement between the parties for any of the subject work. 5. It does appear that the work was initially contracted with Respondent Twin Peaks, and then later, Mr. and Ms. Barnett and a Mr. Katz, after allowing the licenses for Twin Peaks to lapse, formed a new business, the Respondent Bar Kat Construction, which took over the project. Bar Kat Construction being mainly the same people as Twin Peaks, then began collecting monies owed Twin Peaks, which had ceased operations. No objection seems to have been raised by Complainants when this new arrangement started. 6. Then the parties began to have a money dispute over who was owed money from the other, or not. Respondent ceased work, and filed a lien on the property. Complainants filed nothing to contest the propriety of the lien, but did file these Complaints, and hired others to do the work. The work is now substantially complete, and the parties are in Superior Court in Santa Cruz County over the lien and monetary/contract dispute. 7. The Complaints were assigned to an agency Inspector who went to the job site, but declined to issue any Corrective Work Order in any of these cases. 8. Complainants allege among other things that Respondents’ workmanship was defective and they had to hire others to correct it. However, there is no substantial evidence to support this allegation, and what appears to have occurred was after the falling out between the parties, the uncompleted work was finished by others hired by Complainants. Had this work been the product of Respondents’ or any other licensed contractor’s, finished efforts, it would indeed be defective. However, it was merely unfinished work, and it was unfinished owing to the parties’ monetary/contract dispute. 9. Complainant Mr. St. Marie alleged three acts of fraud as against the Respondents, but these allegations deal with the change in companies, change in billing, and the monetary dispute which is now being litigated by these parties in civil court. 10. Complainants allege that Respondents performed electrical and plumbing work at the project outside the scope of their licenses. Respondents deny this, and allege that they worked within their scope as to plumbing leading up to the structure, and hired out the electrical to a properly licensed contractor. Complainants produced no substantial evidence of the Respondents performing work outside the scope of their licenses. 11. The parties’ good faith monetary and/or contract dispute should be more properly resolved, if at all, in the civil courts, where it now reposed.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondents in these cases are cited in the respective Citations and Complaints, all taken together, with possible violations of A.R.S. 32-1154.A.1, 2, 7, 15, 18, 20, and 3 (namely A.A.C. R4-9- 108, Workmanship Standards). 3. There is no substantial evidence to support a conclusion of abandonment or departure from plans or specifications or building codes in violation of A.R.S. 32-1154.A.1, or 2. The facts proved that before the job could be completed the parties fell into dispute over money. Complainants refused payment, and Respondents were fired from the job and filed a lien. No Order from the Registrar of Contractors Inspector was ever issued which would support these allegations. Similarly, no conclusion of poor workmanship in violation of A.R.S. 32-1154.A.3 can be reached for the same reasons. The parties developed a dispute over money which prevented them from working together to complete the project. Complainants hired others to complete the project. 4. There is no substantial evidence that Respondents acted in a name other than that which appears on the licenses in violation of A.R.S. 32-1154.A.15. 5. It appears from the timing of these jobs that the performer of the work or contracting was licensed at the time. There is insufficient evidence of a violation of A.R.S. 32-1154.A.18. 6. The Respondents are charged with possible violation of A.R.S. 32- 1154.A.20. That statute provides for discipline of a license in the event of the subsequent discovery of facts which, had they been known at the time the Registrar of Contractors issued the license, would have been grounds to deny the license. The facts and the Registrar of Contractors license records prove that the Respondent Bar Kat Construction, LLC, does have the name of Mr. Nathan Leon (or Leno) Barnett appearing on them as the Qualifying Party, while at the same time his name appears as the Qualifying Party on the licenses issued to Twin Peaks Construction, LLC, which are now either suspended or revoked. A.R.S. 32-1154.A.21 prohibits this circumstance; however, Respondents were not cited in any of these Citations and Complaints with a possible violation of that statute. Thus they were not put on notice to defend against this as the possible violation of A.R.S. 32-1154.A.20 contemplated in the Citations and Complaints. Nevertheless, Respondents should immediately take steps to replace their Qualifying Party or subject themselves to a disciplinary action by the Registrar of Contractors. 7. The parties’ good faith monetary and/or contract dispute is all that was proved in this case. That, without additional evidence of wrongdoing, does not warrant disciplinary action upon a licensee. See: Bentivegna v. Powers Steel & Wire Products Inc., 206 Ariz. 581, 81 P.3d 1040 (Ariz. App. Div. 1., 2003). ,

RECOMMENDED ORDER In view of the foregoing it is hereby recommended that Citations and Complaints T06-1244, T06-1244W, T06-1245, T07-0114 and T07-0115, together with the Complaints on which they are based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). It is further recommended that the Respondents Bar Kat Construction, LLC, be admonished that unless they correct the circumstance of having an improper name on their license on or before the effective date of this Order, they are subject to disciplinary action by the Registrar of Contractors. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, February 13th, 2007.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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