ALJDEC decisions subject to certification as final

08F-2291-ROC · Registrar of Contractors · 2009-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2009 and July 22, 2009 APPEARANCES: Candice Miracle appeared in her own behalf on June 2, 2009, but failed to appear for further hearing on July 22, 2009. The Respondent, Kenneth Woods, appeared in his own behalf. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter initially came on for hearing on June 2, 2009, at which time the Complainant presented the majority of her case. 2. The hearing was not concluded and the case was set for further hearing to commence on July 22, 2009 so that the Respondent could present its case. 3. The Complainant failed to appear for the further hearing and no good cause is known for the non appearance. At the further hearing and in the absence of the Complainant, the Respondent presented evidence which was not disputed at the time of or after its presentation[1]. 4. On March 10, 2006, the Complainant’s home in Glendale, Arizona suffered extensive fire damage. The damage was set at $109,774.65 with $500.00 deductible. 5. On May 27, 2006, the Complainant and Respondent entered a contract for the Respondent to perform reconstructive work on the home. The contract amount was $92,755.00. The contract does not contain the “ROC” acronym before the Respondent’s license number. 6. The work was to have been accomplished by December 10, 2006 unless delayed for reasons beyond the Respondent’s control. 7. The home passed inspection by the City of Glendale on December 15, 2006. 8. According to the Complainant, there was still a significant amount of “finish work” that remained to be completed. 9. The Complainant testified the Respondent was dilatory and did not complete the remaining work as required, even though the Complainant paid $4,000.00 to the Respondent in advance of when that payment was due. 10. The Respondent continued performing some of the required work into the summer of 2007, but according to the Complainant, new problems arose and some previously identified problems were not being corrected. 11. The Respondent testified that in December 2007, the Respondent offered to settle the case with the Complainant but the Complainant refused to accept a letter sent by certified mail [2]. 12. On February 14, 2008, the Complainant filed her Complaint with the Registrar of Contractors (ROC). The Complainant listed 36 items and subsequently added 13 more for a total of 47. 13. On March 18, 2008, ROC Inspector Jim Hennessey (Hennessey) performed a jobsite inspection. 14. On April 2, 2008, Hennessey issued Corrective Work Order (CWO). Some of the items listed in the Complaint were split into separate items. Six items were found to have been corrected prior to the jobsite. Other items were found to be within ROC tolerances, beyond jurisdiction, no longer at issue, or otherwise not verified. 18 items were to be corrected based on Hennessey’s findings and 10 were to be corrected under an agreement between the parties. In addition, the Complainant added three more items, only one of which Hennessy determined required correction. 15. Hennessey performed a prehearing inspection and testified that the following items still had not been satisfactorily completed: a. Item 1(b). Paint splatter on the southwest of the porch needs to be corrected; b. Item 2. Poor patching and painting over old sunshade hardware (Exhibit 2);. c. Item 3. Inadequate paint job in the kitchen and laundry room area (Exhibit 3); d. Item 5. Screw holes in the laundry room require correction; e. Item 6. Holes (2 holes, 2 inch diameter) in hall bathroom have been filled but require painting; f. Item 7. Crack (hairline) in bathtub needs correction (Exhibit 4); g. Item 9. Paint splatter on patio and garage floors needs to be removed; h. Item 10. Reimburse the Complainant for a destroyed jasmine tree and replace trellis; i. Item 11. A skylight was corrected, but according to Hennessey the Complainant asserted new problems had arisen; j. Item 18. The Respondent failed to install a screen door with sliding glass windows on the front door; k. Item 20. The master bedroom window was corrected, but new problems have arisen; l. Item 21. Shelving in garage is not completed; m. Item 23. Cuts or scrapes in seamless concrete floor in the bedroom, hall and living room areas need correction; n. Item 29. Antenna needs to be installed to replace the antenna broken by the Respondent; o. Item 30. The antenna requires wiring; p. Item 35. Two bedroom doors required proper hanging, they were corrected, but one of the doors and drywall paint at the frame of the door were damaged (Exhibit 5); q. Item 37. Exterior stucco patch at the back window does not match (Exhibit 6); r. Item 41. A hole behind mirror in master bedroom is not repaired; s. Item 16. Access door to steam shower is not finished (the bottom of the door should have smooth finish); t. Item 15. Wires in the attic should be secured in place [3] (Exhibit 9). 16. During his cross examination of Hennessey, the Respondent asserted he told Hennessey item 14(b) above was not part of the contract, and that item 14(c) was not completed because the Complainant moved into the home early and before all the work was completed. It is noted the contract lists December 10, 2006 as the move in date under the contract. The Complainant moved in on December 15, 2006. The Respondent testified on being questioned by the Complainant, that the flooring contractor came to the Complainant’s home to repair the floor, but the Complainant was disputatious and the contractor did not return. The Respondent claimed he could have completed the project if he had had five more days. The Respondent’s assertions were not supported by any additional evidence and are not given significant weight. 17. Garrison Feldman (Feldman) is the Complainant’s son and performed some clean up and debris removal for the Respondent. Feldman testified that baseboard in the hallway does not meet a door frame, paint at the living room and bedroom baseboards does not match and the Respondent cut down natal Plum bushes (plus the jasmine bush) that were not to be removed. 18. Anita Forcinade (Forcinade) is a friend of the Complainant. She stayed in a recreational vehicle next to the Complainant’s home from December 2006 to March 2007. According to Forcinade, the Respondent failed to show up for scheduled work on a number of occasions. Forcinade also testified regarding decomposing stucco and exterior paint coverage (Exhibit 8), that the Respondent had a key to the home and therefore access to the home, that the Respondent caused and acknowledged causing the scratch to the floor in the living room, the master bathroom window has no caulking or sealant, the stucco surrounding the window is damaged, and that the skylight is “cockeyed” with only one side properly sealed. 19. During the further hearing and contrary to Forcinade’s testimony at the initial hearing, the Respondent testified he did not have a key or access to the Complainant’s home after the Complainant moved back into the home. The Respondent did acknowledge that completion at the Complainant’s home was not a priority and that the Respondent did not complete exterior work while the Complainant was out of town because the Complainant had filed her Complaint. This latter assertion is not credible because the Complainant did not file her Complaint until February 14, 2008. This is long after the work should have been completed. Finally, the CWO issued on April 2, 2008 and the Respondent offered no credible explanation of why the corrective work has not been completed.[4] 20. The Complainant provided evidence regarding drywall and bathtub costs cited in the State Farm Scope of Loss (Exhibit 11) and the contract between the parties (Exhibit 1). The precise issue with respect to the application of these costs is unclear. The Complainant was not present at the further hearing to give a more complete explanation of the relevance and interpretation of that evidence. 21. Exhibit 12 is a change order in the amount of $7,908.49 for items purchased by the Complainant. After other adjustments, the credit to the Complainant is listed as $4,846.51. Complainant argued that in light of the amount of the change order, she is entitled to $1,476.20 for the overhead, profit, and sales tax applicable to the amount to be credited. This issue required additional evidentiary explanation at further hearing, but the Complainant was not present to more fully explain her position or present such additional evidence. 22. Exhibit 13 shows the estimates for repair of the floor scratches. The two options vary in price from $300.00 to $900.00. Exhibit 14 is a bill for repairs to what is believed to be the Complainant’s water softener, which was purportedly damaged by the Respondent. Exhibit 15 consists of various estimates for painting ranging from $1,045.00 ($1,835.00 if entire interior of the house is to be painted ), an estimate of $1,620.00 for the interior and $1,800.00 for the exterior, to $2,869.00 for both interior and exterior. 23. During the hearing, the Complainant raised issues which Hennessey had been unable to verify including reimbursement for a ceiling fan and removal of an antique sink (CWO items 28 and 25) and a claim for 20% overhead and profit on $16,000.00 ($3,200.00). These issues also required additional evidentiary explanation, which was anticipated at the further hearing. The Complainant argued that the Respondent’s delay has caused her hardship. As previously stated, the Complainant failed to appear for further hearing and these newly raised issues were not fully addressed. Absent a more complete evidentiary presentation, they cannot be thoroughly considered and an informed decision made with respect to amounts which may be owed to the Complainant on these items. 24. The Respondent testified the Complainant did not provide adequate access to the home in order to complete the work. According to that testimony, after receiving the CWO the Respondent offered to complete the work the following week, [5] but the Complainant limited him to early morning and late evening hours and weekends. The Respondent acknowledged he performed no further corrective work at some unspecified time because the Complainant further complained to the ROC about the lack of progress. Finally, the Respondent claimed the Complainant owed additional sums as a consequence of a change order. The Respondent presented no additional evidence in support of that assertion. Conclusions of Law The allegations in the Citation and Complaint cite A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108 wrokmanship, (A)(7), a wrongful act with substantial injury; (A)(23) failure to take appropriate corrective action; (A)(13)/A.R.S. §32-1124(B) license number and ROC acronym on business documents. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The Respondent’s defenses to the allegations are clearly not accepted as to items remaining to be corrected on the exterior of the home because the Respondent did not require a key to gain access in order to make the corrections. These items include those listed in paragraph 15(a), (b), (g), (h), (q) and possibly (j) of this decision. There was no reasonable explanation given as to why appropriate corrections were not made although in light of the financial dispute between the parties, non reimbursement for item 14(h) is understandable. 5. It is also concluded the Respondent’s claimed justification for not performing the interior corrective work is not credible. The Respondent acknowledged he was dilatory in responding to the Complainant’s requests because the Complainant was not a priority and that he made no further effort to comply with the CWO because the Complainant had further complained to the ROC about the Respondent’s lack of progress. 6. Both parties claim that money is owed. Full payment has not been made to the Respondent and the Complainant is withholding payment for work which remains to be corrected. In light of the Complainant’s failure to appear for further hearing and the claims and counter claims regarding financial matters, the evidentiary record is insufficient for a reasonable determination of what amounts are owed to whom. 7. Based on the evidence in its entirety, it is concluded the Respondent’s failure to perform the required corrections (including the interior corrections) is not excused and violations of (A)(3)/A.A.C R4-9-108, (A)(7) and (A)(23) are established with respect to items which require correction as set forth in paragraph 15 (a through t). The (A)13 violation is also established. 8. According to the ROC website, the Respondent’s license is cancelled. In the absence of additional evidence and final argument by the Complainant, meaningful discipline aside from a civil penalty, does not appear practicable. A revocation is considered too severe under the facts of the case. Recommended Order It is recommended commencing the effective date of the Order issued in this matter that the Registrar impose a civil penalty in an amount deemed appropriate under A.R.S. §32-1154 (D).[6]

Done this day, July 29, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Contrary evidence that was presented by the Complainant on June 2, 2009 will be weighed in making findings and reaching conclusions. [2] The unopened letter was viewed and returned to the Respondent. A copy of the contents of the envelope was received as Exhibit (A). The evidence was offered to show the Complainant did not want to negotiate in good faith. [3] This was initially listed as corrected. [4] The explanation that the Complainant made the Respondent uncomfortable is not convincing. [5] With the exception of the window installation and stucco repair which would take longer. [6] The Order is effective forty days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings. If the Order is certified by the Director of the Office of Administrative Hearings, the civil penalty for violation of A.R.S. §32-1154(A)(23) shall be in the amount of Five Hundred ($500.00) Dollars pursuant to 1154(D).

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