ALJDEC decisions subject to certification as final

09F-1234-ROC · Registrar of Contractors · 2009-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 30, 2009. APPEARANCES: Gregory and Susan Mohr appeared personally. Christensen Electric, Inc. was represented by its attorney, Nino Abate, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Christensen Electric, Inc. (“Respondent”) is the holder of License No. 237201, a Class C-11 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Gregory M. Mohr and Susan S. Mohr (“Complainants”) filed a written Complaint with the Registrar against Respondent, the terms of which are incorporated herein by reference. The Registrar designated the Complaint as Case No. 09-1234. 3. The Registrar issued a Citation and Complaint in Case No. 09-1234 alleging violations by Respondent of A.R.S. § 32-1154(A) (1), (2), (7), and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. 09-1234 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. Complainants undertook a remodeling project at their home located at 6042 E. Hearn Road, Scottsdale, Arizona. 6. Complainants hired Copper Ridge Homes, Inc. (“GC”) as their general contractor. Sal Chirco was its principal agent on the project. 7. GC subcontracted with Respondent for electrical work on the project. There is no privity of contract between Respondent and Complainants. 8. At the time it entered into the subcontract, Respondent had verified that GC’s contracting license was in good standing. 9. Respondent’s scope of work was divided into two areas: the rough-in work and the trim work. 10. Respondent completed its rough-in scope of work. That work passed the applicable building authority’s inspection. 11. After completing the rough-in work, Respondent did not receive the scheduled progress payment from GC. Payments made prior by GC were for materials. 12. Respondent’s employees observed that there were problems on the project between Complainants and other trades, including the GC. However, Respondent’s employees did not have any problems with Complainants. 13. On July 15, 2008, Respondent’s qualifying party, Eric Christensen, met with GC’s principal and Complainants. GC’s principal admitted not paying Respondent for work performed on the project. He expressed a willingness to let Complainants pay Respondent directly and to assume the subcontract agreement or enter into a separate contract with Respondent. Complainants refused to either assume GC’s obligations under the subcontract with Respondent or to enter into a separate contract with Respondent. Mr. Mohr told Mr. Christensen that Respondent should complete its scope of work and sue the GC for the unpaid contract price. 14. On July 17, 2008, Respondent was prepared to run conduit. The painters had over sprayed stain all over Complainants’ residence. A frustrated Ms. Mohr stated that she was not going to pay anyone, which was overheard by Respondent’s workers. After hearing that statement, Respondent’s workers left the jobsite and removed electrical supplies from the jobsite to secure them. 15. Later that afternoon, Mr. Christensen telephoned Mrs. Mohr to discuss her statement that she would not pay anyone working on the project. Mrs. Mohr said she would call Mr. Christensen back. 16. Instead, Mr. Mohr called back to speak to Mr. Christensen, who put the call on speakerphone. Mr. Christensen’s employee, Tyler Owings, was also present. Mr. Mohr was threatening toward Mr. Christensen. Mr. Mohr stated that Respondent was no longer permitted to work on the project or be present on the property. Mr. Owings’ credible testimony confirmed that conversation. 17. Later, Mr. Christensen had a conversation with Mr. Chirco. Mr. Christensen threatened to file a Complaint against GC with the Registrar for nonpayment of the work performed by Respondent. 18. Mr. Chirco offered Mr. Christensen the sum of $2,700.00 in exchange for the electrical supplies in Respondent’s possession and for Respondent to walk away from the project. Although GC owed Respondent the sum of $4,800.00, plus a change order, Respondent accepted the offer. 19. Although GC’s contracting license was suspended at this point in time, it subcontracted with Arrowhead Electric, L.L.C. to complete the remaining scope of the electrical work for the project. 20. Eliseo Joel Huerta, III is Arrowhead Electric, L.L.C.’s member and qualifying party. Mr. Huerta testified that it was not his company’s responsibility to investigate the license status of GC when it entered into the subcontract agreement. Mr. Huerta is the one who suggested to Complainants that they file the Complaint against Respondent. 21. GC had privity of contract with Complainants. As the general contractor, GC was responsible to Complainants for the scope of the electrical work, not Respondent. 22. Respondent did not abandon the electrical scope of work on Complainants’ project. Respondent and GC entered into a settlement agreement resolving their dispute. GC released Respondent from its obligations under their subcontract agreement. GC remained responsible for the electrical work, although it was not permitted to perform contracting, including the hiring of Arrowhead Electric, L.L.C., to complete the trim scope of the electrical work. 23. Respondent’s rough-in electrical work complied with local building codes. Respondent complied with the local building authority inspector’s instructions or directives regarding the manner of wiring the smoke detectors. 24. Respondent’s electrical work met minimum workmanship standards. Respondent’s rough-in electrical work was approved by the local building authority inspector. As a result of the settlement agreement between Respondent and GC, Respondent was precluded from completing the trim electrical scope of work. GC assumed responsibility for the remainder of that work. 25. Respondent did not commit a wrongful act resulting in substantial injury to Complainants. 26. Any allegation contained in Complainants’ Complaint not specifically addressed in the above is found to lack sufficient evidence of record to support a Finding of Fact supporting a statutory and/or regulatory violation by Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainants failed to sustain their burden of proof in this matter. 4. The evidence of record does not support the allegation that Respondent abandoned the project, in violation of A.R.S. § 32-1154(A) (1). The above Findings of Fact set forth the factual basis for this conclusion. 5. The evidence of record does not support the allegation that Respondent failed to comply with local building code requirements, in violation of A.R.S. § 32-1154(A) (2). Respondent’s rough-in electrical work was approved by the local building authority inspector. 6. The evidence of record does not support the allegation that Respondent committed a wrongful or fraudulent act resulting in substantial injury to Complainants, in violation of A.R.S. § 32-1154(A) (7). The above Findings of Fact support this conclusion. 7. The evidence of record does not support the allegation that Respondent’s work failed to meet minimum workmanship standards, in violation of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108. Respondent’s rough-in electrical work met minimum workmanship standards and code requirements, as evidenced by the local building authority inspector’s approval of that work. 8. Complainants failed to establish an entitlement to an award of restitution, pursuant to A.R.S. § 32-1156.01.[1] RECOMMENDED ORDER The Citation and Complaint in Case No. 09F-1234-ROC shall be dismissed 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 40 days from the date of that certification.

Done this day, July 20, 2009

______________________________________ Brian Brendan Tully 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] In their Complaint, Complainants requested the following relief: “Refund money to pay for second licensed electrician to complete job.”

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