ALJDEC decisions subject to certification as final

07F-2622-ROC · Registrar of Contractors · 2008-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2008

APPEARANCES: Barbara Gustafson, Complainant; Ron Meyer, Respondent's Attorney; Robert Goodman, Respondent’s Superintendent; Samuel Jarvis, Respondent's Junior Superintendent; Jeff Fleetman, Registrar of Contractors Inspector

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ In a complaint with the Registrar of Contractors, the Complainant did not establish that Respondent violated the applicable contracting statutes or rules. Therefore, it is recommended that this complaint be dismissed. FINDINGS OF FACT 1. Complainants suffered storm damage to their home and hired the Respondent to do major repair work. When the work was substantially completed, the Complainant had not paid about half of the agreed-upon amount, so the Respondent filed a mechanic's lien on the property. Thereafter, the Complainants filed a complaint with the Registrar of Contractors. 2. A Registrar of Contractors Inspector completed an inspection of the home and found eight items in need of repair or correction. He issued a Corrective Work Order directing the Respondent to complete or correct the eight items.

3. Although the Respondent made numerous attempts to schedule a time to repair the items in the Complainants' home, the Complainants were polite but uncooperative. They would not allow a time to be set to allow the Respondent in the home. They used various excuses for their unavailability, but the true reason for the delay became clear to the Respondent over time. Many times, when the Respondent called, the Complainants asked if the lawsuit was going to be dismissed, and, when the Respondent answered no, they kindly failed to give any date or time that the Respondent could come do the corrective work. Even after the Complainants' intentions were clear, the Respondent attempted to complete the work. Respondent even sent a different superintendent, Samuel Jarvis, to the home to make a list of all items that the Complainants wished to correct regardless of whether the items were on the Corrective Work Order. Still, the Complainants refused to allow the Respondent to send workers to the home to do the work. The Complainants then filed for bankruptcy, forcing the Respondent into the position of being barred from even contacting the Complainants anymore. At hearing, Mrs. Gustafson testified that the bankruptcy has been dismissed but they plan to re-file. She offered no clear chance for the Respondent to be allowed in the home and no evidence that it had ever been allowed in the home after the Corrective Work Order was issued. Instead, she argued that she did not think that the Respondent ever intended to complete the work. The numerous letters in the file from the Respondent to the Complainants, combined with the Complainants’ own letters and the testimony of the Respondent's witness, Samuel Jarvis, provided overwhelming evidence that the Respondent made diligent efforts to set a time to do the work, but the Complainants refused to cooperate. 4. Respondent's witness, Robert Goodman, testified that much corrective work had been done on the home. But the weight of the evidence indicates that it was more likely that no work was done after the Corrective Work Order was issued. Mr. Goodman's memory was unclear as to when the work was done and what work was done, while the ROC Inspector's pre-hearing inspection confirmed that no work had been done. However, disregarding Mr. Goodman's testimony entirely, the great weight of the evidence clearly establishes that the Complainants consistently refused access to their home for the corrective work and that they made it clear by implication that access to the home would only be granted if the Respondent's lawsuit was dismissed. The weight of the evidence established that the Complainants were attempting to use their complaint as leverage to get the Respondent to release its mechanic's lien and lawsuit and would not allow entry to their home unless the mechanic's lien and its associated lawsuit were dropped. 5. Since the Respondent was not given the opportunity to correct the items in the Corrective Work Order, it cannot be established that Respondent violated the relevant portions of the contracting statutes and rules as alleged in the Citation and Complaint. 6. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7), and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. Although certain items were found not to meet workmanship standards, the Respondent was not given an opportunity to correct the items. Therefore, it is not appropriate to find a violation of this portion of the above statute. 5. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. Complainants have failed to establish any violation of this portion of the above statute. 6. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. In this case, the Complainants, by refusing access to the Respondent, have established that the Respondent had a valid justification for failing to take corrective action on the Corrective Work Order. Therefore, it has not been established that the Respondent violated this portion of the above statute. 7. The Complainants have not established by the weight of the evidence at hearing that the Respondent violated A.R.S. § 32-1154(A)(3), (7) or (23) or A.A.C. R4-9-108. Therefore, their complaint should be dismissed in its entirety. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in the above matter be dismissed in its entirety. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.

Done this day, May 15, 2008

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

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

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