ALJDEC decisions subject to certification as final

07F-G1723-ROC · Registrar of Contractors · 2008-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2008 APPEARANCES: Complainants Daniel Lair and Jessica Lair appeared on their own behalf. Respondent Hammer and Hand Construction, L.L.C., doing business as Drab to Fab, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Hammer and Hand Construction, L.L.C., doing business as Drab to Fab (“Drab”), 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: Procedural Background On July 1, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on August 13, 2008 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainants Daniel Lair and Jessica Lair were present. No one appeared on behalf of Drab. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Drab, or the receipt of any information that would constitute good cause for Drab’s absence or delay. No such information was received. Therefore, the hearing proceeded in Drab’s absence. FINDINGS OF FACT Drab is the holder of a Class B license (No. 216459) issued by the Registrar of Contractors (“ROC”).[1] On or about March 23, 2007, Complainants and siblings Daniel Lair and Jessica Lair contracted with Drab for Drab to perform remodeling work at the condominium they had inherited from their mother. The contract specified that Drab was to install new cabinets, laminate countertops, and sinks, replace the front entry door, perform interior painting, replace closet doors and two bedroom doors, and install new carpeting and new laminate flooring in a bathroom. See Exhibit 1. The contract price was $23,430.00. Id. On March 23, 2007, Ms. Lair paid $11,000.00 to Drab. See Exhibit 2. Drab began its work at the condominium, and performed the demolition work, some painting, installed the bedroom doors, and replaced the closet doors. Approximately two weeks after Drab commenced its work, Drab ceased performing work and failed to return to the project, leaving behind carpet samples, paint splatters on tile, as well as on the front door, and left many of the appliances and cabinetry that had been removed, on the patio, rather than properly disposing of them. See Exhibits 4, 5, and 6. On or about May 1, 2007, Daniel and Jessica filed a complaint against Drab with the ROC. In their complaint, they generally alleged that Drab abandoned the project. Ms. Lair testified at hearing that she attempted on numerous occasions to contact Drab in an effort to have Drab complete the project, all to no avail. Ms. Lair testified regarding the costs incurred to complete the project, and explained that she and her brother performed much of the work themselves and purchased less expensive materials in order to complete the project within their budget. Ms. Lair submitted into evidence copies of receipts about which she testified. See Exhibit 14. According to Ms. Lair’s calculations, the receipts total just under $12,000.00. Id. Ms. Lair also obtained an estimate from Saver’s, in the amount of $18,900.00 to complete the project per the original contract specifications. Id. CONCLUSIONS OF LAW In this proceeding, Daniel Lair and Jessica Lair bear the burden to prove, by a preponderance of the evidence, that Drab 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 September 18, 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 Daniel Lair and Jessica Lair met their burden of proof as to both 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 on the weight of the credible evidence of record, that Drab failed to complete the project that it contracted to perform without legal excuse for such failure. Therefore, the Administrative Law Judge concludes that Drab 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 evidence presented at hearing, that Drab committed wrongful acts that substantially injured Daniel Lair and Jessica Lair by failing to complete the project that it contracted to perform. Therefore, the Administrative Law Judge concludes that Drab violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Drab’s Class B license. Upon consideration of all of the facts and circumstances presented by this case, including Drab’s failure to appear for hearing and Drab’s suspended and revoked license status, the Administrative Law Judge concludes that the ROC should revoke Drab’s Class B license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Drab’s Class B license shall be revoked on the effective date of the Order entered in this matter. 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, August 27, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Drab’s contracting license was suspended on October 1, 2007 for lack of bond, revoked on February 13, 2008 in Case No. G07-1770, and subsequently revoked in Case Nos. 07-2108, G07-1743, and G07-1663. Such suspended and revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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