ALJDEC decisions subject to certification as final

07F-T0020-ROC · Registrar of Contractors · 2007-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22nd, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. Sam Madani, represented himself. Respondent, Nguyen and Associates, Inc., was represented by Mr. Bob Nguyen, President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Nguyen and Associates, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-01 License number 198889. 2. Complainant, Mr. Sam Madani, contracted with Respondent in writing, in January, 2006, for Respondent to remodel Complainant’s business premises located in Tucson, Arizona, so that it could be used by Complainant for a massage parlor. The contract price was $26,200.00. The contract provided that the completion date would be 120 days or less from Feburary 1st, 2006, but that such completion date, as all other agreements, was subject to “delays beyond [Respondent’s] control.” 3. Complainant, in anticipation that he would be soon operating a massage parlor, had rented the premises simultaneously with the signing of the contract, and prior to obtaining any permits, or the work being commenced. Complainant paid Respondent $6,000.00 on the contract pursuant to the amount it called for to start the project, on February 9th, 2006. Respondent paid the architect out of that amount to prepare drawings for the project. Complainant has paid several thousands of dollars to the landlord. 4. The architect completed his plans on March 23rd, 2006, and Respondent took them to the City of Tucson’s Department of Development Services that same day. 5. By April 10th, 2006, the City had approved the plan’s engineering, plumbing, mechanical and water, zoning, and fire code aspects. However, on or about May 5th, 2006, the project hit a proverbial brick wall in the City’s Commercial Building area. The project being one for a massage parlor, there were several particular areas that the City had to approve, and consideration of these delayed final permitting of the project. Respondent and the project’s architect were diligently trying to satisfy the City’s requirements. 6. Respondent was still trying to satisfy the City when Complainant filed this Complaint in the Registrar of Contractors’ office on July 10th, 2006. The Complainant complained that the project was supposed to have been completed in 120 days, but as of then no permit had been obtained. 7. The City of Tucson finally denied the permit application for the massage parlor on or about July 31st, 2006. Respondent informed Complainant of this action and inquired how he wished to proceed, considering that the changes being required by the City before it would permit the project would require such extensive revisions and cost increases as to make the existing contract impossible to perform. 8. It does not appear that Respondent abandoned the contract, but could not perform it without violating City code. Likewise, Respondent did not depart from or disregard plans or specifications, or building codes, but, rather he honored those plans and specifications, and codes, which is why he could not and would not begin construction. 9. It appears that the contractual completion date was frustrated by events beyond the parties’ control making performance under the contract impossible. 10. There is insufficient evidence to find that Respondent was neglecting Complainant’s attempts to communicate.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.1, 2, and 7. 3. Respondent did not abandon the project, and did not depart from plans, specifications, or building codes. Respondent did not violate A.R.S. 32-1154.A.1 or 2. 4. There is no evidence of any other wrongful or fraudulent act on the part of Respondent in this case, which might be a violation of A.R.S. 32-1154.A.7.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T07-0020, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, January 29th, 2007.

______________________________________ Grant Winston Administrative Law Judge

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

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

By ___________________________

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

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488