ALJDEC decisions subject to certification as final

08F-S0194-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2009, 1:30 p.m. APPEARANCES: Complainant Ms. Janine Meyers represented herself. Respondent Mr. Peter Jeffrey Ammon, dba Ammon Enterprises, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Mr. Peter Jeffrey Ammon is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class C-02 License number 083995. 2. Complainant, Ms. Janine Meyers filed this Complaint against Respondent in the Registrar of Contractors’ Sierra Vista office on April 23, 2008. The Complainant alleged in her Complaint, that Respondent’s work was poor and Respondent abandoned their contract for “dirt work” at her Sierra Vista, Arizona residence. 3. Respondent did provide a written quote to Complainant dated March 2, 2008. The quote described some work that Respondent was willing to perform and prices for each item of work contained therein. The quote did not include the Respondent’s Arizona Registrar of Contractors’ License number preceded by “ROC.” The quote, also, proposed to perform concrete work as part of the job. 4. This dispute is mostly over matters that happened outside the brief written quote. Much of the sworn testimony at the hearing is that of Complainant and Respondent contradicting each other over what was said and agreed to relative to verbal changes and the involvement of the third-party general contractor. The third-party contractor evidently built the house, and the parties had unsuccessfully tried to have that contractor return and perform further site work. 5. As clearly as can be found from the parties’ contradictory testimony and evidence about who said, agreed, or did something, a problem was discovered in the grade of the lot, and Respondent and Complainant asked for this to be corrected by the third-party contractor before Respondent performed his work in the quote. 6. When the third-party contractor did not perform the work, these parties then discussed the Respondent making these grade corrections himself. The record is unclear as to what the parties agreed, or if they understood each other about how to proceed and how payment would be made. Each party seems to be clear in his or her understanding of what was agreed to, and equally clear that the other party has misunderstood. No alterations to the original contract were clearly put in writing, so there is insufficient evidence to determine these material facts. 7. Respondent did perform some work, and then stopped before the work was completed. His contention is that, based on the parties’ verbal agreements, he performed all the work he had been paid to do, and would require more money to continue. Complainant’s version is basically that Respondent agreed to finish the job and abandoned the project. 8. When the Complaint was filed, it was assigned to Registrar of Contractors Inspector Mike Nieves for inspection. After investigating the matter, he sent the parties a letter dated May 7, 2008 in which he informed them that he “could not determine which items had been contracted for or agreed upon between all the parties.” (See: Resp. Ex. 1). This controversy was not clarified to any further degree at the hearing. 9. While it is clear that the site grading and preparation is unfinished, there is insufficient evidence to find that Respondent abandoned the job, or would not have properly completed the job if he had finished performance. There is insufficient evidence to find that Respondent was obligated to do more, because it cannot be determined what was the parties’ agreement. 10. 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, 17, 3 (namely, A.A.C. R4-9-108 Workmanship Standards), and 13 (namely, A.R.S. § 32- 1124.B). 3. There is insufficient evidence to conclude that Respondent violated A.R.S. § 32-1154.A.1, 2, or 3 (namely, A.A.C. R4-9-108) because there is insufficient evidence to prove what the parties had agreed would be done for what price. Thus, no conclusion that can be reached that Respondent abandoned the project, deviated from plans or specifications, or demonstrated poor workmanship. 4. Respondent did violate A.R.S. § 32-1154.A.17 by contracting beyond the scope of his C-02 License to contract for excavating, grading and oil surfacing. Respondent contracted to perform concrete work which requires a class C-9 license. 5. Respondent also violated A.R.S. § 32-1154.A.13 and A.R.S. § 32- 1124.B by failing to include his license number preceded by “ROC” on the written quote to Complainant. 6. There is no evidence of any wrongful or fraudulent act in the facts of this case in violation of A.R.S. § 32-1154.A.7 independent of the violations of A.R.S. § 32-1154.A.13, and 17, and A.R.S. § 32- 1124.B.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class C-02 License number 083995 be suspended for a period of five calendar days commencing on the effective date of this Order for the violations of A.R.S. § 32-1154.A.13, 17 and A.R.S. § 32-1124.B. It is further ordered that in the event the Registrar of Contractors receives written proof that Respondent has taken the necessary steps to ensure that all of his business related forms and documents fully comply with all requirements of A.R.S. § 32-1124.B. on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided suspension shall be reduced to a period of three calendar days for the violation of contracting beyond the scope of his license (A.R.S. § 32-1154.A.17). In the event of certification of the Administrative Law judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 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 Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com