ALJDEC decisions subject to certification as final

07F-G1834-ROC · Registrar of Contractors · 2008-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its owner and qualifying party, Dwayne Freeman (“Freeman”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained A Sap Services, LLC (“A Sap”) to install a new wood laminate floor in her home. Complainant alleges certain deficiencies in the work performed and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. The applicable contract was entered into between Complainant and Freeman, who was doing business as A Sap on or about September 2006. The work was completed by A Sap on or about September 28, 2006. b. At the time the work was completed, Complainant signed the contract document, showing that “the services were completed without exception or damages, I accept the charges of these services.” Complainant paid A Sap the contract price of $900.00 in full. c. A Sap was not a licensed contractor at the time the work in question was performed. For that matter, Respondent’s license was not even issued by the Registrar of Contractors until April 17, 2007.[1] d. Complainant contends that A Sap’s workers damaged her baseboard molding, while removing same, and did a poor job of reinstalling the base moldings. In addition, she contends that a number of doorway thresholds were not installed properly. Nevertheless, she never mentioned any claimed damage at the completion of the project and never requested any corrective work by A Sap, prior to the time that she retained an unlicensed individual to remove and replace the baseboard and thresholds. e. According to Complainant, she paid the aforementioned unlicensed individual the sum of $1,628.77 to complete the remedial work on the baseboards and thresholds. She did not receive any other bids for this remedial work. Based on this expenditure, Complainant seeks restitution from Respondent. f. Freeman testified that A Sap never contracted to remove or reinstall the baseboard. According to Freeman, he was engaged to Complainant’s friend at the time of the contract and Complainant had advised him that her nephew would take care of the baseboard work. He further testified that he saw Complainant at Thanksgiving 2006 and in January 2007, at a charity event, and she never mentioned any complaint about the baseboards or thresholds. Complainant indicated that she did not contact Freeman about the issue of the baseboard and the thresholds, at the time in question, due to the bad feeling over Freeman’s engagement break-up with her friend. g. Evidence of record showed that Complainant had filed a civil lawsuit against A Sap (Freeman) in the Lake Pleasant Justice Court, in case no. CC2007099046. In this civil lawsuit, she basically raised the same issues as set forth in the instant Registrar of Contractors’ Complaint. A trial was convened in this civil case and judgment was issued on August 13, 2007, dismissing Complainant’s civil case against A Sap (Freeman).

3. Based on the evidence of record it is determined and held that the instant matter should be dismissed for all of the following reasons:

a. The licensee named herein was not even in existence at the time of the work in question. b. Even if there were deficiencies in A Sap’s work, Freeman was not given any reasonable opportunity to correct said claimed deficiencies. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. c. The judgment in the above-described civil court case is res judicata on the issues brought before this Tribunal.

CONCLUSIONS OF LAW

1. It is a well settled doctrine and policy of law that final judgments of civil courts may not be subject to collateral attack in subsequent proceedings. The findings and judgment in Superior Court case no. CC2007099046 are res judicata as to the issues and allegations in the instant complaint.

2. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. G07-1834), together with the Complaint upon which it is based, be dismissed.

Done this day, March 6, 2008.

______________________________________ Mark A. Silver 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 ___________________________

----------------------- [1] Notwithstanding the fact that Respondent did not receive its license until some seven (7) months after the work in question was completed, there is no charge in the applicable Citation and Complaint of A.R.S. § 32-1154A (20).

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