ALJDEC decisions subject to certification as final

08F-4219-ROC · Registrar of Contractors · 2009-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2009

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Rob Williams (“Williams”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to replace the existing wood deck in his yard. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and these issues are discussed in the findings below.

2. On April 2, 2008, the parties signed the applicable contract. Among other things, the contract provided that the work would commence on April 6, 2008 and be completed on April 15, 2008. In addition, the contract also set forth the terms of payment, with a down-payment of $3,850.00 at the commencement of the project and the balance of $2,550.00 to be paid upon Respondent’s completion of the specified work.

3. The work on the deck was performed by Respondent. However, on April 15, 2008, Complainant sent Respondent a letter indicating that he found 43 deficiencies in the deck and 3 tasks that had not been completed. It should be noted that the claimed deficiencies were based totally on Complainant’s opinion without any evidence of an expert having examined Respondent’s workmanship.

4. Among other things, Complainant contends that Respondent utilized short boards on the new deck, left gaps in the deck, failed to use pressure treated wood on the subfloor for the deck and failed to have the project completed on schedule.

5. Based on his dissatisfaction with Respondent’s work, on April 18, 2008, Complainant sent a letter to Respondent, indicating that they should get together on April 23, 2008 in order to come to terms on how to get the project corrected and completed. Complainant testified that the parties had the meeting on April 23, 2008 and at that time Williams demanded more money for materials. When Complainant refused to pay any additional money to Respondent, Williams advised Complainant to find someone else to finish the job.

6. Complainant admits that Respondent was working on the project late in the day on April 14, 2008, when he asked Respondent to leave and not work at night due to the fact that his wife was ill and company was coming in from out of town. Williams asserts that if Complainant had not denied him access to work longer on April 14 and 15, 2008, then he could have had the project completed on time. Williams further contends that it is unfair for the customer to dictate the hours that he can work on the job.

7. Williams claims that there was nothing deficient in his work and the materials provided were in compliance with the contract requirements.

8. Complainant ultimately hired another contractor, Hunter’s Home Builders (“Hunter”), to repair and replace, as needed, the work performed by Respondent. In this regard, Complainant paid Hunter the sum of $4,849.00. Thus, Complainant claims he paid $2,299.00 more than the original contract price with Respondent in order to have the project completed in a proper workmanlike manner.

9. It should be noted that Complainant failed to present any expert testimony in regard to the work performed by Respondent. In addition, he failed to show any competitive bids from other contractors regarding what costs were actually necessary to repair and/or complete the project started by Respondent.

10. There was no jobsite inspection by an assigned inspector for the Registrar of Contractors due to the fact that Hunter had already completed its work on the project at the time the instant Complaint was filed with the Registrar of Contractors.

11. A review of the applicable contract shows that Respondent was not entitled to any further money until the project was completed. Notwithstanding the fact that Complainant prevented Respondent from working on the project into the evening hours on April 14 and April 15, 2008, which could have allowed Respondent to complete the project, it is determined and held that it was improper for Respondent to demand further payments on April 23, 2008, since the contract did not require Complainant to make any further payments until the project was completed.

12. Respondent’s failure to return to the project and complete the project is found, under all of the facts and circumstances presented herein, to constitute an abandonment of the project without legal excuse.

13. The evidence of record was inadequate to support any finding that, had Respondent completed the contract, the project would not be capable of meeting minimum standards for acceptable workmanship. Complainant failed to sustain the requisite burden of proof on this issue and, thus, the facts presented herein fail to establish any liquidated sum of money that Respondent may owe to Complainant.

14. Complainant’s exhibit no. 2 (the contract) shows that Respondent failed to include his license number, preceeded by the acronym “ROC,” on the document. The failure to include this information on a contract for construction services constitutes a violation of the applicable charged section of the State’s contracting laws.

15. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that, in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant Complaint was the only Complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and, thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

16. Notice is hereby taken of official Registrar of Contractors’ public records which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since December 21, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (1) and (13); namely A.R.S. § 32-1124B.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B-03 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has taken all necessary steps to insure that its license number, preceeded by the acronym “ROC,” appears on all documents utilized in its business. It is further recommended that if Respondent complies with the above- described condition, on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on active suspension for a period of five (5) days followed immediately by a period of 55 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. 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.

Done this day, April 20, 2009.

______________________________________ Mark A. Silver 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 ___________________________

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