ALJDEC decisions subject to certification as final

08F-P0270-ROC · Registrar of Contractors · 2009-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2009; 1:30 p.m. APPEARANCES: Complainant Mr. Michael Higgins represented himself. Respondent Wilfong, Inc. doing business as Debco Construction Company was represented by Mr. Don Wilfong owner. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Wilfong Inc. doing business as Debco Construction Company contracted with Complainant Mr. Michael Higgins to construct Complainant’s residence in Payson, Arizona in 2007. 2. Following completion of the home Complainant filed the instant Complaint in the Arizona Registrar of Contractors’ office alleging unprofessional contracting, workmanship defects and monetary discrepancies. 3. The allegations made as to workmanship are that the upstairs floor molding was improper, and the material used on the driveway was not what the parties had agreed would be used. 4. The Complaint was assigned to a Registrar of Contractors Inspector who conducted a job site inspection. Following the inspection the Inspector sent a letter to the parties stating his decision that no action was required by the Respondent as to any items of the Complaint. As to the money issues, the Inspector informed the parties that those matters are beyond the jurisdiction of the Registrar of Contractors. At the hearing the Complainant acknowledged his understanding of that position, and the money items were withdrawn as an issue in the Complaint. 5. At the job site inspection the Complainant attempted to insert an item that was not in the Complaint, that being the issue of flooring defects. The Inspector informed the Complainant at the job site that he would not consider or render an opinion as to the flooring because it was not in the Complaint. Later the Complainant attempted to add the flooring as an item to the Complaint, and there does appear in the agency file a letter he sent to the Registrar of Contractors’ Show Low office asking to do that. However, the letter was never sent to the Respondent either by the Complainant or the Registrar of Contractors. No addendum was added and no notice served on the Respondent. Thus the Respondent had no notice that the flooring allegations would be part of the hearing. Accordingly, no evidence was taken on that subject. 6. The two items remaining to be disputed were the upstairs floor molding and the driveway material used by the Respondent. 7. Substantial and credible evidence proved that the Complainant originally had instructed Respondent that carpet would be installed upstairs. Thus the Respondent began installing the floor in a manner consistent with it receiving the carpet. This included leaving space at the edge of the floor for the carpet to fit. After that stage was completed the Complainant informed the Respondent that he had changed his mind, and would like for vinyl flooring to be installed upstairs. This meant that the space left for the carpet was too large to be suitable for vinyl flooring. The Respondent offered a solution, but was overruled by Complainant. Respondent took the steps to rectify the gap in the floor according to Complainant’s instruction, and now Complainant is dissatisfied with the appearance. 8. The parties agreed that Complainant would agree to waive installation of two windows in exchange for a concrete patio and a driveway of a red gravel-type material. The patio was properly installed. 9. The parties agree that as a condition to approving the change to the contract, the Complainant conditioned the agreement on Respondent’s assurance that the material for the driveway would be hard as cement (concrete). Respondent corroborated that he did tell this to Complainant, and further testified that had Complainant given the material time it would have settled and hardened. 10. The Respondent did have his subcontractor properly install the same material the parties agreed to have installed for the driveway. However, the evidence proved that the gravel material was not, and in all likelihood never would be, as hard as cement or concrete as Respondent had represented to Complainant. Normal vehicle usage was scattering the gravel, and amounts of water normal to weather conditions and home use would erode the material. This process of erosion and wearing away of the gravel was ongoing almost immediately after it was installed. Complainant subsequently hired another contractor to install a concrete driveway 11. Respondent’s subcontractor who installed the driveway testified that it could not be hard as cement or concrete. The cost of the material and its installation was $806.81. As the driveway was supposed to be part of the value Complainant received for relinquishing the windows, and as Respondent materially misled the Complainant as to the nature and qualities of the red gravel-type material, restitution in this amount should be paid from Respondent to Complainant. 12. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.1, 2, 7, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. There is no substantial evidence that Respondent violated A.R.S. § 32-1154.A.1 by abandoning the project, or 2 by departing from or disregarding plans or specifications, or 23 by failing to timely take any appropriate corrective action after receiving a written directive from the Registrar of Contractors, or 3 by unprofessional conduct listed at A.A.C. R4-9-108. 4. Respondent did violate A.R.S. § 32-1154.A.7 by the wrongful or fraudulent conduct of materially misrepresenting to Complainant the nature and quality of the red gravel-type material that was to be installed in the driveway. But for the representation about the quality of this material the Complainant would not have relinquished his right to have the two windows installed. 5. A.R.S. § 32-1156.01 allows an Administrative Law Judge to recommend that a licensee pay restitution to any person who is injured by an action of the licensee. Restitution in the amount of $806.81 is appropriate in the facts of this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B- License number 185345 be suspended until such time as the Registrar receives written proof acceptable to the Registrar that Respondent has made restitution to Complainant in the amount of $806.81. It is further recommended that in the event the Registrar receives the written proof that Respondent has made the aforementioned restitution on or before the effective date of this Order (40 days after the date of service appearing in the Registrar’s certification on the Order), then the above-provided license suspension shall not occur and Citation and Complaint P08-0270 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, August 11, 2009.

______________________________________ Grant Winston 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 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com