ALJDEC decisions subject to certification as final

07F-G0525W-ROC · Registrar of Contractors · 2008-11-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2008 APPEARANCES: Complainant Shirley Sharp appeared on her own behalf; Respondent was represented by Attorney Fredrick C. Thomas, who appeared with Andrew Wolfe, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ 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. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Rehearing dated October 1, 2008. 2. Complainant Shirley Sharp (“Complainant”) is the owner of a 35- year-old residence located at 3609 W. Voltaire in Phoenix, Arizona which she sought to have restored by Respondent after a fire.

3. Respondent Felton Antrim Construction Company, Inc. (“Respondent”) is an Arizona corporation which holds Arizona Contractor’s License No. 029673, Class B- (General Residential Contractor) issued by the Registrar of Contractors on August 14, 1967 and Arizona Contractor’s License No. 168539, Class K-11 (Dual Electrical) issued by the Registrar of Contractors on September 11, 2001. Andrew David Wolfe is a corporate officer and is the qualifying party for both licenses. 4. On September 22, 2006, displeased with the restoration work, Complainant filed a complaint with the Registrar of Contractors. 5. On February 12, 2007, Complainant contacted the Registrar of Contractors to request a hearing. 6. On May 31, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. 07F-G0525 and 07F-G0525W charging Respondent with possible violations of A.R.S. § 32-1154A (2), (7), (15), (23), (3) (namely A.A.C. R9- 4-108), and (13) (namely A.R.S. § 32-1124(B)). 7. Respondent filed an answer on April 29, 2008 denying the allegations. After a default based on what was perceived to be an untimely filed answer, and subsequent Order Granting Rehearing, the matter was set for the instant hearing before the Office of Administrative Hearings, an independent state agency. 8. From the evidence elicited at the hearing, the following salient facts are important to note: a. In March, 2005, Complainant hired Respondent to perform a fire restoration at her residence at 3609 W. Voltaire in Phoenix, Arizona. (Complainant, however, did not offer any contract, bid or estimate into evidence for this tribunal’s consideration). b. As described above, on September 22, 2006, displeased with the restoration work, Complainant filed her complaint with the Registrar of Contractors wherein she alleged, in a multi-page attachment, 77 separate claims of poor workmanship or wrongful acts by Respondent. c. Registrar of Contractors Inspector James Hennessy was assigned the complaint and, on January 23, 2007, Inspector Hennessy conducted an inspection of the work performed at the residence owned by Complainant. d. On January 26, 2007, Inspector Hennessy issued a Corrective Work Order to Respondent. While Inspector Hennessy did testify at hearing, Complainant did not present any evidence that Inspector Hennessy ordered any items to be corrected, nor did Complainant offer into evidence a copy of any Corrective Work Order. Additionally, while Inspector Hennessy did testify that on November 4, 2008 he conducted a prehearing inspection, Complainant did not present any evidence that Inspector Hennessy observed any items that required any further corrective work by Respondent, or observed any work that did not meet minimum workmanship standards. e. Complainant testified that Respondent committed the following acts or omissions during the restoration work: (i.) Wood beams not replaced on ceiling as required in contract; (ii.) Frosted glass put in replacement “shotgun windows” rather than amber glass as the original windows contained prior to the fire; (iii.) Respondent did not clean up the backyard; (iv.) Chair rail in living room was not replaced as called for in the contract; (v.) Reverse Osmosis system was not replaced; (vi.) Aluminum patio cover removed from site without permission; (vii.) Café Doors are missing; (viii.) Fireplace molding, baseboard and kitchen cabinets do not meet Complainant’s approval; (ix.) Respondent filed a lien on Complainant’s home for payment without first serving a Preliminary 20-Day Notice on Complainant; and. (x.) Respondent would arrive at Complainant’s residence without making an appointment and work would be delayed at times.

f. Mr. Andrew Wolfe, qualifying party for Respondent, testified that the initial bid and agreement between Respondent and Complainant did call for “like to be replaced by like”. The wood beams, chair rail, reverse osmosis, and café doors were not replaced with like items, however, because Complainant and Respondent agreed, albeit with verbal rather than written change orders, to not replace those items and instead use the allotted monies for other upgrades which included enlarging the master bedroom, relocating a closet, adding a skylight, changing an arcadia door, and removing a door and window. (When Complainant was later asked whether she recalled agreeing to such changes, Complainant stated she does remember agreeing to some changes but does not recall whether she agreed to other changes as described by Mr. Wolfe). g. Mr. Wolfe testified that amber glass was not used in the replacement “shotgun windows” because when the job was started 3 and ½ years ago, he could not find amber glass such as was used 35 years ago. Mr. Wolfe testified that he provided Complainant with options such as applying an amber tint, but that Complainant choose to go with frosted glass. Complainant found a glass dealer who could provide amber glass after the Complainant agreed to frosted glass and after the frosted glass windows had been installed. h. Mr. Wolfe testified that the backyard was not cleaned up by Respondent because Complainant had undertaken the task of content inventory and she had moved the items recovered from the home to the backyard. i. Mr. Wolfe testified that the contract between Respondent and Complainant called for removal (demolition) and replacement of the patio and cover. Mr. Wolfe testified that he took possession of the aluminum patio cover along with all other demolished materials and recycled, reused, sold or destroyed these materials, including the patio cover. Mr. Wolfe testified that the contract between the parties did not call for, and it would be highly unusual to call for, the owner to retain possession of demolished materials.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 08-0963 charged Respondent with possible violations of A.R.S. §32- 1154A (2), (7), (15), (23), (3) (namely A.A.C. R9-4-108), and (13) (namely A.R.S. § 32-1124(B)). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following: 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

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

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license. …

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. …

3. Violation of any rule adopted by the Registrar. …

13. Failure in any material respect to comply with the provisions of this chapter.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business. CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. al. al. 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 Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154A(2), (7), (15), (23), (3) (namely A.A.C. R9-4-108), or (13) (namely A.R.S. § 32-1124(B)) in regards to Respondent’s Class B- license (No. 029673). Complainant presented no evidence of any plans, specifications or building codes that were not followed; Complainant presented no evidence of any wrongful act resulting in any substantial injury; Complainant presented no evidence of Respondent operating in any name other than on its license; Complainant presented no evidence of any orders to correct work or any failure to correct any such work; Complainant failed to present any evidence of any work that did not meet any minimum standards or workmanship; and Complainant failed to present any evidence that Respondent failed to place its Registrar of Contractors license number on any document. While Complainant argues that the fireplace molding, baseboard and kitchen cabinets do not meet her approval, her disapproval does not mean that these items fail to meet any minimum standards of workmanship. Likewise, allegations of failing to serve a Preliminary 20-Day Notice, delay in performance, or showing up without calling first do not rise to the level of wrongful acts, nor did Complainant establish any substantial injury arising from these acts. 5. This tribunal also determines and concludes, for the same reasons described above, that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154A(2), (7), (15), (23), (3) (namely A.A.C. R9-4- 108), or (13) (namely A.R.S. § 32-1124(B)) in regards to Respondent’s Class K-11 Dual Electrical license (No. 168539).

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the entire CITATION AND COMPLAINT in Case Nos. G07-0525 and G07-0525W be dismissed in its entirety.[1]

Done this day, November 5, 2008.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] 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.

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

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