ALJDEC decisions subject to certification as final

08F-M0019-ROC · Registrar of Contractors · 2008-03-27

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2008.

APPEARANCES: >The Complainant appeared in her own behalf. >The Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Complainant’s uncontroverted evidence revealed that pursuant to Respondent’s written proposal, duly accepted by Complainant, thereby ripening into a contract, Respondent agreed to and did perform specified remodeling work in an upstairs bathroom in Complainant’s residence. The stated cost price for the contemplated work was in the sum of $7,000.00, and the entire project was to have been fully completed within two weeks.

2. Prior to concluding the above-described agreement, it was shown that Respondent had performed remodeling work on Complainant’s master bathroom with generally good results. It was noted that Respondent had utilized the services of a different crew of workmen and a different project manager on the present remodeling effort on the other bathroom.

3. Complainant was shown to have paid Respondent a total of $5,900.00 against the contract price, leaving an unpaid balance of $1,100.00. Credible testimony tended to indicate that Respondent did not use a substantial portion of the monies transmitted by Complainant for obtaining certain materials needed for the Complainant’s bathroom remodeling project, but instead diverted such received funds for other projects or purposes. In any event, it became necessary for Complainant to personally obtain many of the plumbing fixtures from a retail source and have such materials on site for the performance of installation work by Respondent’s workmen.

4. The testimonial and photographic evidence demonstrated that the tile flooring installed by Respondent was improperly laid directly onto the plywood second story floor undersurface without an appropriate backer- board, causing a spongy and unstable surface condition when walked upon. Additionally, the grout between the tiles had prematurely cracked and deteriorated, such condition traceable in large part to the movement of the tile pieces.

5. The sliding glass shower doors mounted on the bathtub were either incorrectly positioned onto the guide rails or the rails themselves were attached upside down or backwards, resulting in doors that were swinging loose and were otherwise incapable of operating functionally. Respondent was shown to have removed one such door, assuring his return to properly install the entire sliding door feature, but no such return visit or other arrangements for remediation were timely made.

6. The vanity countertop with two sinks had been the subject of a prior sale by sample when Respondent’s then-project manager personally took sample materials to Complainant’s home, all such samples being provided by Respondent’s President and one of its owners. A specific selection was made by Complainant. Credible testimony from the involved former employee revealed that Respondent’s President had intentionally and impermissibly directed a change from the selected countertop material to a different and less expensive countertop unit so as to save money. It is determined that the substitution constituted an unauthorized departure from contractual specifications resulting in substantial detriment to the homeowner.

7. Not only was the countertop not the same as previously selected, especially the sink colors that were supposed to be white, but also the non- specified countertop was installed in a highly sloppy manner with overly wide and unsightly grout lines between the countertop and the back-splash.

8. Both the tile work and the countertop installation work reflected adversely upon Respondent’s workmanship. At a subsequent jobsite meeting, Respondent expressly admitted that the tile work as well as the countertop installation would have to be corrected. During such meeting, Respondent’s President also gave specific assurances that all remedial work would be performed, not by the installing crew, but instead by the workmen who had previously performed satisfactory work on the prior master bathroom remodel project in Complainant’s home. It was shown that Respondent did not adhere to such express promises, also contending that the identity of the selected workmen was solely up to Respondent. Because of the breach of the express promise, Complainant is found to have been justified in communicating her position denying access to the workmen initially utilized by Respondent on this project who had performed substandard, unacceptable and unprofessional work.

9. With respect to the parties’ attempts to correct or change the countertop, it was disclosed that an agreement was subsequently made between the parties for

Respondent to obtain the originally selected countertop material from the supplier/manufacturer and to thereafter remove the incorrect top and properly install the replacement top. Complainant had agreed to pay $400.00 towards the cost of this replacement countertop work. Not only did Respondent fail to conclude arrangements for obtaining and installing the replacement top, but also this tribunal finds that Complainant’s agreement to contribute a portion of the overall cost was not supported by valid consideration, since Respondent was under a pre-existing duty to have furnished and installed the countertop selected as part of the sale by sample as part of its original bid and scope of work. It is determined that Complainant has sufficiently proven her entitlement to receive the selected top installed at no added cost.

10. The overall course of conduct on the part of or attributable to Respondent was generally unresponsive and indicative of a disregard of its duties as a licensed contractor in this State as well as of the comforts and entitlements of the Complainant/homeowner. Such course of conduct, including the showing that the project’s work was not fully and properly completed until far later that the contemplated two-week time frame originally expressly promised by Respondent to Complainant, is further found to constitute an effective abandonment or at the minimum a constructive abandonment of its obligations under the parties’ contractual agreement. Moreover, the acts and omissions of Respondent, especially relating to the probable misappropriation of funds, are determined to constitute a wrongful, and perhaps even fraudulent, act resulting in detriment to Complainant within the meaning of another provision of the State’s contracting laws charged herein to have been violated by Respondent.

11. Complainant’s evidence credibly demonstrated that in addition to the bathroom fixtures not provided by Respondent under its scope of work but instead obtained and paid for by Complainant, added material expenses were incurred by Complainant for the floor tile, grout, backer-board, glass sliding shower doors and other components needed to accomplish corrective work, all in the total combined costs of

$1,010.56. Complainant further incurred labor cost of $500.00 to have the fixtures and materials installed and the deficiencies rectified through other sources, thereby effectively more than erasing any otherwise applicable unpaid balance due to Respondent under the contract. An additional significant expense is likely to be incurred for the removal and replacement of the incorrect countertop. However, an item relating to the cost of addressing a stain on the carpeting resulting from the prior remodeling work in the master bathroom did not appear to have been encompassed within the allegations of the presently pending complaint and was excluded from consideration at the hearing of the instant case.

12. Notice is taken of the Registrar’s license records which reveal that Respondent’s Class KB-01 license has been revoked for cause on November 13, 2007 in Case Number 07-2199 and subsequently again revoked for cause on March 12, 2008 in Case Number M07-0396. Such license has also been suspended by operation of law since August 30, 2007 for lack of a bond and since November 30, 2007 for non-renewal. Neither the revocations nor the suspensions preclude the Complainant from pursuing her administrative remedies nor do they preclude the Registrar from conducting these disciplinary proceedings which are expressly authorized pursuant to the provisions of A.R.S. §32-1154(C).

13. No valid purpose would be served by formulating reasonable conditions for inclusion in the Order to be entered in the instant matter, since Respondent’s revoked license may not be restored even if any such conditions were to be timely and fully complied with by Respondent. Consequently, the present posture of Respondent’s license should prompt the Registrar to decline to include any conditions for reduction of penalty in the ultimately entered Order.

14. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S.§32-1154(A)(1), (2),(7), and (3); namely, Rule R4-9-108, A.A.C.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter.

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 will be forty (40) days from the date of that certification.

Dated: March 28, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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