ALJDEC decisions subject to certification as final

07F-2685-ROC · Registrar of Contractors · 2008-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2008 APPEARANCES: Complainant Mary Durand appeared on her own behalf. Bob Brown appeared on behalf of Respondent Bo Den Builders, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Bo Den Builders, L.L.C. (“Bo Den”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Bo Den is the holder of a Class B-03 license (No. 178455) issued by the Registrar of Contractors (“ROC”). Bob Brown is Do Den’s qualifying party and sole member. On March 14, 2006, Complainant Mary Durand contracted with Bo Den for the design and construction of a new two car detached garage on Ms. Durand’s property located at 140 West Almeria Road in Phoenix, Arizona, in the historic Willow District. Any architectural additions or modifications on Ms. Durand’s property are subject to approval by the City of Phoenix Historical Preservation Office. The contract price was estimated at $59,504.15 plus $2,650.90 in taxes, “with final cost estimate subject to final approved architectural drawings which could raise or lower Contract Sum, or by additions and deductions by Change Order as provided hereafter.” See Exhibit 2, Section 4. On March 14, 2006, Ms. Durand paid Bo Den a $12,000.00 deposit. See Exhibit 3. Bo Den retained the services of David Thomson, an architect and owner of Thomson Associates, to prepare the plans for the construction of the garage. Mr. Thomson initially met with Mr. Brown, Mr. Brown’s son, Kevin, Mr. Brown’s girlfriend, Regina Best, and Ms. Durand, on February 13, 2006. During that meeting, they all discussed the project, and Ms. Durand stated that she wanted the garage completed by the beginning of the summer. Mr. Thomson advised Ms. Durand that because approval was needed by the Historic Preservation Committee, the project would not be complete by the beginning of the summer, but possibly by the end of the summer, and that a concerted effort would be made to meet such deadline. Thereafter, Mr. Thomson drafted preliminary drawings for the garage based upon what Ms. Durand specified that she wanted, and an application was filed with the Historic Preservation Committee. Ms. Durand, Mr. Thomson, and Mr. Brown attended a public hearing for the project review, and the plans were not approved because the Committee found the project to be too large due to the fact that the plans included a loft for storage, and because of the proposed proximity of the garage to the property line. When the parties returned to Ms. Durand’s home after the meeting, Ms. Durand was upset because she wanted an area for storage. Mr. Brown suggested constructing a basement underneath the garage. Ms. Durand was excited about the prospect of a basement, and Mr. Brown hired a structural engineer to work with Mr. Thomson on the plans for the addition of a basement. According to Mr. Thomson, APS needed to be contacted regarding construction near a utility pole on the property, and it took over thirty days to schedule a field meeting with one of APS’s representatives. Mr. Thomson recalled during his testimony that the installation of a dumb waiter was also considered for the transporting of heavy boxes into the basement. At some point thereafter, Ms. Durand was advised by her physician that she could not have a basement due to the dampness therein and her health issues. Ms. Durand instructed Bo Den and Mr. Thomson to proceed with the revised plans (without the loft and without the basement) for the garage. Mr. Thomson testified that his contract price with Bo Den for Ms. Durand’s project was $6,350.00, of which Bo Den paid $1,500.00. Mr. Thomson paid the structural engineer $1,500.00, and was reimbursed by Bo Den for this amount. By February 2007, Bo Den had not yet begun the construction of the garage, and Ms. Durand terminated the contract. On May 14, 2007, Ms. Durand filed a complaint against Bo Den with the ROC. In her complaint, Ms. Durand alleged the following: On 3-14-06 I gave Bob Brown of bo/den builders, llc, an initial payment of $12,000.00 to design and build a garage for my home. A contract was signed on the same date. Work on the project began with preliminary designs and a historic preservation hearing with the City of Phoenix. Once the project was approved, with changes ordered by the city, I expected that Mr. Brown and bo/den builders, llc would begin work. They did not. On February 1, 2007, I met with Mr. Brown and informed him that I was very displeased that not one shovel of dirt had been moved in furtherance of my garage. We agreed to cancel the signed contract and Mr. Brown was to refund my money to me. He gave me his assurance verbally and in an email, saying that he would need a little time to provide my refund. To date, he has not done so and is not taking my calls nor answering my emails. I am out $12,000.00 and have nothing to show for it.

Both Ms. Durand and Mr. Brown contended at hearing that the delays in the project were attributable to their difficulty in communicating with one another. Both Ms. Durand and Mr. Brown testified that the other did not return telephone calls, and they each denied such accusations. On March 14, 2006, Ms. Durand paid $12,000.00 to Bo Den. Mr. Thomson was not hired by Bo Den until almost one month later, as he took field measurements on April 12, 2006, and was paid $1,500.00 by Bo Den on April 20, 2006. Ms. Durand testified that she works from her home, and that during this time frame, her brother was dying and she was never far from the telephone. As such, Ms. Durand asserted that she was available for any communication attempts by Bo Den. Ms. Durand testified that she terminated the contract with Bo Den due to the fact that almost a year had elapsed since the execution of the contract, and construction had not yet begun. Ms. Durand offered to pay Mr. Brown for his time spent on the project, for Mr. Thomson’s services, and for the structural engineer, and on February 28, 2007, she sent Mr. Brown an email stating the following: It’s been several weeks since we discussed my garage and I decided not to go forward with it. You said that you would refund me the majority of the 12K that, by the way, you have had for a year. I haven’t heard from you and I haven’t gotten a check in the mail. Please let me know by return e-mail when I will get the refund. I would like this to be amicable Bob. Please let me hear from you.

See Exhibit 4. On March 5, 2007, Mr. Brown responded to Ms. Durand’s email as follows: Hi Mary, Hope this email finds you doing well. Dave has been getting his information together as well as I have. It should be a few more weeks, sorry for the timing, then I will email you the final information and then a refund. Thanks. Bob Brown

See Exhibit 4.

Ms. Durand testified that she never heard from Mr. Brown or Bo Den after the email exchange. Ms. Durand hired another contractor to construct the garage, and such construction was complete within approximately forty days. Ms. Durand testified that prior to commencing construction, the subsequent contractor contacted Mr. Thomson to discuss the plans and discovered through his conversation, that Bo Den had not paid Mr. Thomson in full for the plans. The contractor would not utilize the plans prepared by Mr. Thomson unless Mr. Thomson was paid. As such, on August 10, 2007, Ms, Durand paid Mr. Thomson the balance owed to him from Bo Den in the amount of $3,669.66. See Exhibit 6. Mr. Brown testified that he made several attempts to contact Ms. Durand during the course of the planning of the project, and that he was unsuccessful in reaching her. Mr. Brown testified that he spent considerable time researching the installation of a dumb waiter, that he met with Mr. Thomson on a weekly basis to discuss this project and others on which they were both working, that he attended several Historic Preservation Committee meetings, that Ms. Durand continually changed the scope of the work, and that because the project could not be completed when she wanted it completed, they decided to part ways. Mr. Brown testified that his time is “worth something” and when questioned by Ms. Durand as to his hourly rate, Mr. Brown responded that he charges $65.00 per hour. Ms. Durand submitted into evidence as Exhibit 1, a copy of Bo Den’s Written Answer to the Citation and Complaint, prepared by Mr. Brown. Mr. Brown included a Project Cost Breakdown in this document, stating that the balance due to Ms. Durand from the $12,000.00 deposit, is $190.00. Id. The Project Cost Breakdown further states that Bo Den had paid Mr. Thomson $3,850.00 of its contract amount with Mr. Thomson, when in fact, Bo Den had only paid Mr. Thomson $1,500.00 of the original contract price, and that Mr. Brown is owed $4,100.00 for his time, which equates to 63 hours at $65.00 per hour, yet Mr. Brown failed to substantiate his time on the project with any probative or persuasive evidence. CONCLUSIONS OF LAW In this proceeding, Ms. Durand bears the burden to prove, by a preponderance of the evidence, that Bo Den is subject to discipline for violations of A.R.S. § 32-1154(A)(1) and/or (A)(7) as charged by the ROC in its November 2, 2007 Citation and Complaint. See Arizona Administrative Code R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Durand met her burden of proof as to one of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based upon the evidence of record, that although there were many delays in the project, all of those delays cannot be solely attributed to Bo Den. Those delays were attributable in part to: i) the fact that the plans for the project were subject to prior approval by the Historic Preservation Committee; ii) the plans were modified to include a basement, and a structural engineer was hired for such purpose, and then Ms. Durand was advised by her physician not to construct a basement; and iii) the parties had to wait several weeks for a meeting with APS. Further, Ms. Durand terminated her contract with Bo Den when Bo Den advised her that it could not complete the project by her desired completion date. As such, the Administrative Law Judge cannot conclude that Bo Den abandoned the contract or refused to perform. Therefore, the Administrative Law Judge concludes that Ms. Durand failed to prove that Bo Den violated A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible and uncontroverted evidence presented at hearing, that Bo Den committed wrongful acts that substantially injured Ms. Durand by failing to pay Mr. Thomson in full, compelling Ms. Durand to pay the balance due to Mr. Thomson from Bo Den, for the use of the plans, that Ms. Durand had already paid for in full, via her $12,000.00 deposit. Further, Mr. Brown’s charge to Ms. Durand for $4,100.00, equating to 63 hours spent on the project, is completely unsubstantiated and not credible. Therefore, the Administrative Law Judge concludes that Bo Den violated A.R.S. § 32-1154(A)(7).[1] Based on the foregoing, it is appropriate for the ROC to impose discipline against Bo Den’s license. The ROC’s November 2, 2007 Citation and Complaint advised Bo Den that in the event of a finding of a violation against it, Bo Den’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Bo Den in the ROC’s official records. Those records revealed that Bo Den has not been the subject of any ROC disciplinary orders within the past two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Bo Den’s Class B-03 license.[2] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Commencing on the effective date of the Order entered in this matter, Bo Den’s Class B-03 license (No. 178455) shall be suspended for a period of seven (7) days. It is further recommended, in addition to the foregoing license suspension, that Bo Den’s Class B-03 license be placed on disciplinary probation for a period of one hundred and eighty (180) days. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter. It is further recommended, as an express condition for the next two (2) renewals of Bo Den‘s license, notwithstanding the existence or absence of any uniform assessment by the ROC then in effect, that Bo Den shall be required to pay an additional $200.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. § 32-1132(B). Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Bo Den’s license until payment is made and the renewal issued. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Bo Den’s contracting rights, whether or not probationary, shall be subject to a condition that Bo Den first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32- 1131(3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending. 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, June 23, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] Notwithstanding such conclusion, neither party was able to establish a sum certain that Ms. Durand is entitled to recoup from the deposit. [2] Nothing herein, however, should be read as precluding Ms. Durand from seeking additional relief in a different forum should she choose to do so.

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

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