ALJDEC decisions subject to certification as final

07F-Y0026-ROC · Registrar of Contractors · 2007-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2007, at 1:30 p.m. APPEARANCES: The Complainant appeared through its attorney, Harry Longbottom. The Respondent appeared through its authorized representative, Michael Bann. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT 1. Respondent is the holder of a Class A- License issued by the Registrar of Contractors. 2. This is a residential matter where on or about January 11, 2005, the parties entered into a written Agreement wherein the Respondent agreed to erect a 60’ x 40’ by 12’ metal building for the total sum of $108,896.00. The parties’ written Agreement provides, in pertinent part, as follows: “We hereby submit specifications and estimates for: Buildings, erection 60’ x40’ by 12’. Doors not included. 1 Roll up door, 2 man door. Water elect, sewer, grading, paving, concrete plumbing. Does not include new building.” 3. There was no dispute that the Complainant paid the Respondent the agreed upon sum of $75,000.00 on January 11, 2005. 4. Credible testimony and evidence, presented at hearing, established that subsequent to the written Construction Agreement the parties entered into an oral agreement wherein the Complainant gave the Respondent a 60’ x 100’ metal building with the understanding that the Respondent would sell it and apply the proceeds of the sell of the 60’ x 100’ metal building to the purchase of the new 60’ x 40’ metal building. 5. There was no dispute that the Respondent sold the 60’ x 100’ metal building for $20,000.00. 6. Shortly after the sell of the 60’ x 100’ metal building, the Respondent delivered the materials for the new 60’ x 40’ metal building to the jobsite address. 7. There was no dispute that on December 1, 2005, the Complainant paid the Respondent an additional $15,000.00. 8. Credible testimony and evidence, presented at hearing, established that as of December 1, 2005, despite having been paid a total of $100,000.00 and the fact that over 280 days had passed, no erection work on the 60’ x 40’ building had been completed since the onset of the parties’ Construction Agreement. 9. Credible testimony established that the on or about May 3, 2006, the Respondent informed the Complainant that the Complainant would have to provide its own plumbing contractor to perform the required plumbing work for the new metal building. 10. Credible testimony established that the Complainant paid $2,657.00 to Yuma County for required permits on May 28, 2006, and the Respondent started construction work shortly thereafter. 11. On August 4, 2006, the Complainant filed the Complaint at issue which provides, in pertinent part, as follows: “Non performance, failure to perform- his interpretation of contract. Balloon costs with extra expenses which were not determined.” 12. Credible testimony and evidence, produced at hearing, established that after the Complaint was filed the parties entered into an Agreement wherein the Complainant agreed to allow the Complaint to be closed and the Respondent agreed to complete the erection of the metal building. 13. Approximately three weeks later the Complainant observed that there had been little, if any, progress in the construction of the metal building and requested that the Complaint be reopened. 14. Credible testimony and evidence established that on or abut December 4, 2006, the Respondent notified Yuma County that it was withdrawing as the contractor for the construction project. 15. Credible testimony established that on or about December 10, 2006, the Complainant attempted to gain access to its property and found that the Respondent still had its lock on the property and had guard dogs present. 16. The Respondent removed its lock, dogs, and material on or about December 12, 2007. 17. The Respondent’s actions, in entering into a Construction Contract on or about January 11, 2004, withdrawing from the Contract on or about December 4, 2006 without the completion of the 60’x 40’ steel building, and leaving the Complainant with assorted parts of the unfinished steel building despite the fact that the Respondent had been paid at least $90,000.00 of the agreed upon total cost of $108,896.00, and had utilized nearly two (2) years to begin the construction of the steel building, are found to constitute an abandonment of the parties’ Construction Contract. 18. Credible testimony and evidence, presented at hearing, established that the Complainant has been substantially damaged as a result of the Respondent failure to progress in the construction of the metal building in a timely manner and the Respondent’s abandonment of the construction project. 19. The Respondent’s actions, in failing to complete the construction of the agreed upon 60’x 40’ steel building in a timely manner and in abandoning the construction project leaving the Complainant with parts to an unfinished building, are found to constitute a wrongful act. 20. The parties’ disputes regarding the $20,000.00 from the proceeds of the sell of the Complainant’s 60’ x 100’ steel building and the Complainant’s claim for damages as a result of the loss of its liquor license are found to constitute matters which will necessarily involve a monetary adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction. 21. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (1) (Abandonment) and (7) (Wrongful Act).

RECOMMENDed order In view of the foregoing, it is recommended the Respondent’s Class A- License be revoked. In the event of certification of this 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 the certification. Done this day, July 30, 2007.

______________________________________ M. Douglas 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 ___________________________

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Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488