ALJDEC decisions subject to certification as final

08F-1426-ROC · Registrar of Contractors · 2008-10-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2008 APPEARANCES: Complainant: Chris Cataldo, corporate officer, and Miechelle Sherlock, operations manager, appeared, pro per. Respondent: Kevin Liszewski, member and qualifying party, and Amy Liszewski, member, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

Findings of Fact 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 15, 2008. 2. Complainant H A Developers Monument Homes is a corporation doing business in Arizona as Monument Homes (“Complainant”). Complainant holds an Arizona Contractors Class B (General Residential) license. Christopher Mark Cataldo (“Cataldo”) is a corporate officer and the qualifying party for the license. 3. Respondent K and A Best Fabrication LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 234697, Class K-17 (Dual Steel and Aluminum Erection) issued by the Registrar of Contractors (“ROC/Registrar”) on July 2, 2007. Kevin Leonard Liszewski (“K. Liszewski”) is a member and the qualifying party for the license. 4. Complainant filed a complaint with the ROC on December 19, 2007 wherein it alleged “abandonment of job, after 1st and 2nd deposits cashed” for “steel beams and columns” on new residential construction located at 5209 E. Rockaway Hills Drive, Cave Creek, Arizona (“premises/project”). 5. On May 27, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. 08-1426 charging Respondent with possible violations of ARS Sec. 32-1154A 1, 7, 20 and 13 (namely, ARS Sec. 32-1124(B)). 6. Respondent filed an answer on June 9, 2008 wherein it asserted, inter alia, that had made several attempts to complete the project “for the past 12 months”+ but requests to deliver and erect went unanswered and Complainant was “not ready for steel delivery and erection until inspections were completed in April of 2008.” 7. At the hearing, Cataldo appeared on behalf of Complainant but did not testify.[1] Miechelle Sherlock (“Sherlock”), operations manager, testified on behalf of Complainant and submitted Exhibits 1, 2 and 5 which were marked, admitted and considered. Exhibits 3, 4 and 6 were admitted over objection. Don Mathews (“Mathews”) also testified on behalf of Complainant. 8. K. Liszewski testified on behalf of Respondent and submitted Exhibits A, B and C which were marked, admitted and considered. 9. On or about February 12, 2007, Respondent submitted Quote Number 021207 (“Quotation”) to Complainant for the fabrication and primer of steel to be used on the project for a total sum of $45,000.00. 10. A factual dispute exists between the parties as to which version of the Quotation is the actual contract between the parties, i.e., Exhibit A or Exhibit 1. Although the contract price of $45,000.00 is the same in both, the payment terms are distinctly different and neither contains a time of completion provision. 11. A factual dispute exists between the parties regarding approved change orders on the project. Sherlock contends Complainant never approved any change orders submitted by Respondent but acknowledged that Complainant paid Respondent for change orders in order to have the job completed. K. Liszewski testified that Respondent was paid for change orders submitted. 12. A factual dispute exists between the parties regarding the amount paid on the contract. Sherlock testified that Complainant paid Respondent $37,500.00. K. Liszewski testified that Respondent had been paid $43,750.00 including approved change orders. 13. A factual dispute also exists regarding whether Respondent abandoned the project. Sherlock contended Respondent failed to provide a stamped set of plans per the Quotation. K. Liszewski asserted that Respondent satisfied all requirements of the Quotation including providing Complainant with a set of stamped engineered plans for the project. 14. Certain of Respondent’s documentation, e.g., the Quotation (Exhibits 1 and A) and certain letterhead (Exhibit 2), do not contain the required ROC acronym; others do, e.g., facsimile coversheet (Exhibit 5) and other letterhead (Exhibit B). 15. Sherlock acknowledged that Respondent had attempted to deliver and erect steel on the project prior to her being employed by Complainant.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 08-1426 charged Respondent with possible violations of A.R.S. §32- 1154A 1, 7, 20 and 13 (specifically A.R.S. §32-1124(B)). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

…

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 20. Subsequent discovery of facts which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.

… 13. Failure in any material respect to comply with the provisions of this chapter.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (1) and (20). 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (13) and, specifically, A.R.S. §32-1124(B), by failing to have the ROC acronym on its Quotation as set forth in Finding of Fact 14. 6. This tribunal further determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Order entered in this matter, the Class K-17 license of Respondent be place on probation for a period of thirty (30) days. IT IS FURTHER RECOMMENDED that Respondent be required to present to the Registrar written confirmation of its compliance with the requirements of A.R.S. §32-1124(B).[2] Done this day, October 8, 2008.

_________________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By _________________________ ----------------------- [1] Mr. Cataldo appeared at the beginning of the hearing but deferred to Ms. Sherlock to present Complainant’s case and left the hearing. [2] 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 in this matter will be forty (40) days from the date of that certification.

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