ALJDEC decisions subject to certification as final

07F-2604-ROC · Registrar of Contractors · 2008-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2008. APPEARANCES: Diefenderfer Plumbing Co. was represented by its president, Ralph Diefenderfer. Waldo Lawrence Landmeier appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Waldo Lawrence Landmeier, doing business as Landmeier Construction (“Respondent”), is the holder of License No. 196717, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Diefenderfer Plumbing Co. (“Complainant”) is a licensed plumbing contractor. 3. There is credible evidence that Respondent accepted Complainant’s written proposal to perform plumbing work on a new house construction project located at 13044 South 35th Street, Phoenix, Arizona. 4. There is credible evidence that Respondent signed Complainant’s written proposal on February 1, 2005 and faxed the signature page back to Complainant. Although the signature is not clear due to the fax being printed on thermal paper, Respondent’s signature is visible. 5. Respondent’s testimony that he did not sign the proposal is not credible. 6. Complainant performed three of four phases of work. It submitted pay requests to Respondent for the completed phases. Those pay requests were paid to Complainant drawn on the checking account of David A. Landmeier and Diana L. Landmeier, his wife. David Landmeier is Respondent’s son. 7. Complainant expected that there would be a time break until its final scope of work was ready to be performed. 8. Complainant’s president, Ralph Diefenderfer, went by the jobsite and discovered that its final scope of work had been completed by others. Complainant had not been given any notice to perform the final work or any notice that it had been terminated from the project 9. Complainant filed a written Complaint with the Registrar of Contractors alleging that Respondent breached the parties’ written agreement by having another subcontractor complete the final phase of plumbing. 10. The Registrar designated that Complaint as Case No. 07-2604. 11. The Registrar issued a Citation and Complaint in Case No. 07-2604 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7) and (11). 12. The Registrar referred Case No. 07-2604 to the Office of Administrative Hearings, an independent agency, for formal hearing. 13. The City of Phoenix Building permit lists David A. Landmeier and Diana L. Landmeier as the owners of the subject property and as owner/builder. 14. Respondent entered into the written proposal with Complainant as a license general contractor. 15. The testimonies of Respondent and David A. Landmeier are not credible on the issues of who Complainant contracted with for the plumbing work and Respondent’s professional relationship for the project. 16. David A. Landmeier’s testimony that his father was just a consultant on the project is not credible. 17. David A. Landmeier’s testimony concerning why Complainant was terminated from the project without notice is not credible. 18. Respondent’s termination of Complainant without notice and the hiring of another plumbing contractor to complete the final plumbing work are wrongful acts that substantially injured Complainant. However, the exact amount of injury cannot be determined from the record, such as Complainant’s loss profit for the final phase of plumbing work. The issue of damages should be resolved in a civil court of competent jurisdiction. 19. A review of the Registrar’s official records reveal that Complainant’s Complaint is the only one appearing on Respondent’s Class B- contracting license.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 4. Respondent did not violate the provision of A.R.S. § 32-1154(A) (11), as cited in the Citation and Complaint issued by the Registrar. A civil court will need to address the amount of damages Complainant is entitled to receive.

RECOMMENDED ORDER

Respondent’ Class B- contracting license shall be placed on probation for a period of 120 days commencing on the effective date of the Order entered in Case No. 07-2604. 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 will be 40 days from the date of that certification.

Done this day, January 28, 2008

______________________________________ Brian Brendan Tully 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