ALJDEC decisions subject to certification as final

07F-1955-ROC · Registrar of Contractors · 2008-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 4 February 2008 APPEARANCES: Complainant: Gary Kehoe. Respondent: Robert Crespin, Qualifying Party, Crespin Construction LLC. Others: Jeff Fleetham, Inspector, Arizona Registrar of Contractors 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). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Respondent contracted with Complainant on 25 October 2006 to stucco and replace the windows of Complainant’s commercial building at 111645 North Cave Creek Road for $27,600.00 according to plans provided by the Complainant. Change Order #1 to the basic contract dated 1 November 2006 called for the addition of a front and side porch to the building at a cost of $9400.00. Change Order #2 to the basic contract dated 10 November 2006 called for the addition of a two-story garage and attached walkway to the building at a cost of $51,000.00. Neither the contract nor the change orders had a specific scope of work listed in them. The work to be completed by Respondent had to be ascertained by a cursory description of the work listed in the documents, the list of materials, and the testimony of the parties. The total cost of the contract and change orders is $88,000.00. Article 4 of the basic contract sets forth the progress payment schedule for the contract and the two change orders. It calls for payment of 25% on the contract price down, 25% when framing and/or lath is started (whichever is applicable), 15% when the finish coat is applied, and 10% when the job is completed. 2. Complainant has paid Respondent the following amounts:

$ 7,000.00 25OCT2006 9,000.00 01NOV2006 16,000.00 10 NOV2006 5,853.18 29NOV2006 6,087.18 08DEC2006 6,944.74 15DEC2006 6,304.90 30JAN2007 6,250.00 23FEB2007 $ 63,440.00

All payments were made to Respondent directly, with the exception of the last payment ($6,250.00), which Complainant paid to Oscar Lopez on behalf of Respondent. Mr. Lopez completed certain lathing and stucco on the building project that was part of the scope of work under the basic contract while Respondent’s contracting license was under suspension. Complainant confirms that the work under the basic contract and the work under change order #1 are substantially complete. The work under change order # 2 is not complete. The 2-story garage and walkway has been framed and sealed in, but the work is not complete, and approved plans are still awaiting approval by the City of Phoenix. Complainant has paid the entire contract price for the work under the basic contract and change order #1, and $26,440.00 of the $51,000.00 price (51.8%) under change order #2. In addition, Complainant filed a complaint with the ROC and an onsite inspection of the work was conducted by Robert Crespin, inspector for the ROC, on 20 March 2007. Mr. Crespin issued a Corrective Work Order (“CWO”) to Respondent on 23 March 2007. Ultimately, a Citation and Complaint was issued by the ROC against Respondent’s ROC license on 17 September 2007. 3. At hearing, it was determined that none of the items listed on the CWO had been corrected as of Mr. Crespin’s 1 February 2008 pre-hearing inspection, and that Respondent had ceased work on the project.

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. Respondent is not due any other monies from Complainant under Article 4 of the basic contract regarding progress payments. The contract price for the work under the basic contract and change order # 1 has been paid in full. 51.8% of the contract price under change order #2 has been paid, and since only the framing has been started, but the finish coat has not been applied (and it is doubtful the provision regarding the progress payment associated with the finish coat application being completed is even applicable to the work contemplated by change order #2), only 50% of the contract price is due under change order #2. Respondent must complete the work under change order #2 before Complainant is obligated to pay Respondent any more money. Further, the record is clear that the corrective work under the CWO remains incomplete. 3. It is noted that the official public records of the ROC indicate, as of 28 February 2008, that Respondent’s license has been revoked as of 30 January 2008 in a case other than this one, and suspended for failure to comply with a Decision and Order of the ROC in yet another case. The records also indicate that Respondent has been disciplined in 3 instances in the past 2 years. These facts are properly taken into consideration as matters in aggravation of Respondent’s recommended discipline in this case. 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); A.A.C. R2-19-119(B). 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); A.A.C. R2-19-119(A). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32-1154(A), in particular subsections (1) and (23).

RECOMMENDED DECISION In view of the foregoing, it is recommended that the ROC revoke the Respondent’s Class KB-02 license. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification. Done this day, February 28, 2008

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826