ALJDEC decisions subject to certification as final

07F-M1325-ROC · Registrar of Contractors · 2007-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2007. APPEARANCES: Roberta Bledsoe appeared personally. Design Source Kitchen and Bath, Inc. was represented by its attorney, Lloyd L. Rapp III, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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

1. Design Source Kitchen and Bath, Inc. (“Respondent”) is the holder of License No. 148065, a Class B-03 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about August 17, 2006, Respondent entered into a written contract with Roberta Bledsoe (“Complainant”) for remodeling work at her residence. 3. The parties agreed to the terms of Change Order #1, which was signed by Complainant. Change Order #2 was not signed by Complainant because she was out of town. There is credible evidence that she approved that change order in a telephone conversation with Respondent’s employee. 4. During the project, Respondent’s employee informed Complainant that one of her workers, Cruz Janitorial, was an unlicensed contractor. Cruz Janitorial was performing work on Complainant’s wood floors and stairway. 5. On or about September 19, 2006, Complainant denied access to Respondent. Respondent tried several times in October 2006 to contact Complainant, but was unsuccessful in doing so. 6. Respondent ultimately had contact with Complainant after Respondent reported the unlicensed contractor on the project to the Registrar. 7. After being permitted to return to the jobsite, Respondent noticed that the glass block shower appeared to have been completed by someone other than Respondent. Vanities had also been installed. 8. Respondent performed remedial repairs to the glass block shower. 9. After completing its work, Respondent made numerous requests to Complainant for the outstanding balance owed. Complainant has refused such payment claiming she has been damaged by Respondent. Respondent has filed a civil lawsuit against Complainant for payment. 10. On or about December 20, 2006, Complainant filed a written Complaint against Respondent with the Registrar. The Registrar designated the Complaint as M07-1325. 11. On March 15, 2007, the Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection to view Respondent’s workmanship. After completing his inspection, Inspector Gerold opined that Respondent’s workmanship met minimum workmanship standards. 12. During his inspection, Complainant told Inspector Gerold that the parties had a money dispute. 13. The Registrar issued a Citation and Complaint in Case No. M07-1325 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7) and (3), namely A.A.C. R4-9-108. 14. Complainant requested an administrative hearing in this matter. The Registrar referred Case No. M07-1325 to the Office of Administrative Hearings, an independent agency, for formal hearing. 15. There is no credible evidence that Respondent deviated from plans or specifications on Complainant’s project. 16. Respondent’s workmanship meets minimum workmanship standards. 17. Respondent did not commit any wrongful or fraudulent act against Complainant. 18. The parties have a bona fide monetary dispute that should be resolved in their civil lawsuit rather than in this disciplinary proceeding.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). The Administrative Law Judge concludes that Complainant failed to sustain her burden of proof at the hearing. 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (2), (7) and (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER

The Citation and Complaint in Case No. M07-1325 shall be dismissed 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, November 21, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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

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