ALJDEC decisions subject to certification as final

07F-2161-ROC · Registrar of Contractors · 2007-12-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2007 APPEARANCES: Complainant: Thomas A. and Terri L. Mainwaring appeared, pro per. Respondent: Respondent failed to appear either personally or through any authorized representative or counsel. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated October 9, 2007. 2. Complainants Thomas A. and Terri L. Mainwaring (“Complainants”) are the intended owners/occupants of a residence located at 11 East San Miguel, Phoenix, Arizona (“premises/project”).[1] 3. Respondent Steven Dale Wakeman (“Wakeman”), an individual doing business as Wakeman Construction (”Respondent”), holds Arizona Contractor’s License No. 220142, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) on May 24, 2006. Wakeman is the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that the subject license was current as of the date of the hearing. 4. Complainants filed a complaint with the ROC on March 23, 2007 wherein they alleged, inter alia, that Respondent had failed to order and schedule various items and services as promised for which Complainants had paid $80,635.00 and failed to complete numerous items of work per the parties’ contract. 5. On June 19, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. 07-2161 charging Respondent with possible violations of A.R.S. §32-1154A 1, 7 and 9. 6. Respondent filed an answer on July 2, 2007 wherein it alleged, inter alia, that Complainants refused to abide by the parties’ contract, showed a “total disregard for the project as the Building Permit and the approved plans have detailed” as the result of which Respondent “had no choice but to stop on the project,” and were ordered Complainants’ homeowners’ association to cease framing work. 7. At the hearing, Complainant Thomas Mainwaring (“T. Mainwaring”) testified and submitted Exhibits 1 through 13 which were marked, admitted and considered. 8. Respondent failed to appear through any authorized representative or counsel. 9. On or about November 27, 2006, Complainants executed a Proposal (“contract”) whereby Respondent was to perform remodeling work at and erect a five hundred square foot (500 sq. ft.) addition to the premises for a total of $86,825.00. (Exhibit 2) 10. On or about January 8, 2007, the parties agreed to add Extra Charges to the contract in the amount of $14,060.00. (Exhibit 2) 11. On or about February 20, 2007, the parties agreed to additional Extra Charges to the contract in the amount of $8,750.00 which brought the total contract price to $109,635.00. (Exhibit 2) 12. From November 28, 2006 through February 20, 2007, Complainants paid Respondent $80,865.00 of the total contract amount up front for labor and materials to be provided on the project. (Exhibit 3) 13. Respondent began work on the project in December 2006 and ceased performance in March 2007 without any notification provided or explanation given to Complainants. 14. Respondent has performed no additional work on the project since mid-March 2007. 15. Complainants have expended at least $30,787.01 for other contractors and materials to complete the project which, as of the hearing date, remains unfinished. (Exhibits 9, 10, 11 and 12)

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. §32-1154A 1, 7 and 9. Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. …

9. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent abandoned the project in violation of A.R.S. §32-1154A (1). 5. This tribunal further determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent failed in a material respect to complete the project for the price stated in the contract, or any modification of the contract, in violation of A.R.S. §32-1154A (9). 6. The foregoing violations are deemed by this tribunal to have been wrongful and have resulted in the substantial injury to Complainants. Therefore, violations of A.R.S. §32-1154A (7) have been proven as cited and specifically indicated in Conclusions of Law 4 and 5 hereof. 7. It is also determined and concluded that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith during and subsequent to performing part of its work on the subject project. Such absence of good faith is further demonstrated by Respondent's failure and/or refusal to complete the project and failure to appear at the hearing which shall serve as factors in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class B license of Respondent be revoked.[2] Done this day, December 4, 2007.

_______________________ Brian E. Smith 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 ______________________ ----------------------- [1] The premises are actually owned by Virginia Harris, Mrs. Mainwaring’s mother, from whom Complainants intended to purchase the property once the modifications called for under the subject contract were completed and paid for by them. [2] 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 the certification.

-----------------------

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