ALJDEC decisions subject to certification as final

09F-A0182-ROC · Registrar of Contractors · 2009-11-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2009 APPEARANCES: Complainant: Judy T. Brewer appeared, pro per. Respondent: Michael Uniacke, corporate officer and qualifying party, appeared telephonically, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing via videoconference at the time, date and place set forth in the Notice of Hearing issued by the Registrar of Contractors (“ROC/ Registrar”) on August 4, 2009. 2. Complainant Judy T. Brewer (“Complainant”) is the owner of a residence located at 642 S. Canyon Dr. East, Prescott, Arizona. 3. Respondent Advanced Insulation, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 124883, Class B- (General Residential) issued by the ROC on June 25, 1997. Michael William Uniacke (“Uniacke”) is a corporate officer and the qualifying party for the license. 4. Complainant filed a Complaint with the ROC on November 7, 2008, wherein she related a detailed account of the circumstances precipitating her Complaint, as the result of which she seeks the replacement and delivery to her residence of “8 bags of Bonded Logic Ultra Touch Insulation” valued at $668.84 which she asserts were “loaned” to Respondent. 5. Complainant filed a request of a citation on November 24, 2008. 6. On April 28, 2009, the Registrar issued a Citation and Complaint in Case No. A09-0182 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7). 7. Respondent filed an Answer on May 13, 2009, wherein it set forth a responsive factual account and asserted, inter alia, a general denial of any liability and affirmatively alleged that it had no contractual relationship with Complainant, that the ROC is an improper forum for this matter and that Complainant had not contacted Respondent regarding the insulation until 19 months after the related project had been completed. 8. At the hearing, Complainant testified and submitted Exhibits C-1, C-2 and C-3 which were marked, admitted and considered. Ben D. Brewer (“B. Brewer”) and Mike Marks (“Marks”) also testified on behalf of Complainant. 9. Uniacke appeared telephonically[1] and submitted Exhibits R-2 and R-3 which were marked, admitted and considered. Eric Henderson (“Henderson”), Respondent’s dispatcher, also testified on behalf of Respondent. 10. In December 2006, B. Brewer was serving as a consultant for Marks, owner of Peregrine Builders (“Peregrine”), who was the general contractor on a project located at 4965 W. Smoki Drive, Prescott, Arizona (“project”). 11. Respondent was a subcontractor of Peregrine on the project. 12. In December 2006, due to a shortage of materials, Peregrine was in need of some insulation to install on the project to minimize, if not eliminate, pending $500.00 per day late fines. Marks testified that he instructed Henderson, Respondent’s dispatcher, to contact B. Brewer who offered to “loan” the insulation to Respondent for use on the project. 13. B. Brewer then provided Respondent with eight (8) bags of Bonded Logic Touch Insulation which was used on the project. 14. The subject insulation was taken from Complainant’s residence where it was going to be used on an addition. 15. Marks testified that he always believed that Complainant/B. Brewer had “loaned” the insulation to Respondent/Peregrine as a favor. Marks acknowledged that there was no written agreement to evidence the transaction and he never spoke with Henderson or Uniacke regarding replacement of the insulation. 16. B. Brewer testified that he twice spoke with Uniacke and confirmed that the insulation was being loaned to Respondent/Peregrine for the project. Uniacke testified that it was not clear from his conversations with B. Brewer that it was a loan. 17. A factual dispute exists between the parties regarding the nature of the transaction between B. Brewer and Respondent. Complainant, together with B. Brewer and Marks, contend that the insulation was “loaned” to Peregrine/Respondent for use on the project with the intent that Complainant would subsequently be reimbursed for same or that such insulation would be replaced. Complainant further opined that the insulation transaction was a verbal contract between B. Brewer, Respondent and Marks. Uniacke and Henderson argue that Respondent had no contract with Complainant, the insulation was provided by B. Brewer as an employee of Peregrine and there was no agreement to reimburse Complainant for the insulation or replace it. 18. The subject insulation is valued at $668.84. (Exhibit C-3) 19. In October 2008, B. Brewer telephoned Respondent to request replenishment of the subject insulation. 20. Uniacke testified that Respondent had an excess of insulation at the end of its work on the project and, had he known it was necessary to replenish Complainant’s insulation, he would have done so. 21. Uniacke further testified that, after nineteen (19) months, the time for Complainant to assert her claim had passed. Complainant asserted that the delay in such claim was the result of extenuating serious health issues of B. Brewer and herself.

APPLICABLE LAW The Citation and Complaint issued by the Registrar Case No. A09-0182 charged Respondent with possible violations of A.R.S. §32-1154 (A) (7). That statutory section requires that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (7) by its failure to replace the subject insulation and/or remit an adequate sum to compensate Complainant for same. Notwithstanding the absence of any written agreement between Complainant and Respondent, the latter was benefitted by Complainant’s provision of the subject insulation not only by its use on the project but the same assisted in Respondent and/or Peregrine’s avoidance of a $500.00 per day late fee thereon. Clearly, Complainant is the innocent party in the instant scenario. Should Respondent be of the opinion that it is a victim of the circumstances, it is free to pursue an action against Peregrine for compensation.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order issued in this matter, the Class B- license of Respondent be suspended until the Registrar receives written proof that Respondent has delivered to Complainant eight (8) bags of Bonded Logic Ultra Touch Insulation or remitted thereto the sum of $668.84 as reimbursement for such insulation. IT IS FURTHER RECOMMENDED that, if Respondent timely delivers to Complainant the referenced insulation or remits or tenders to Complainant the above-state sum then, in that event, no license suspension shall take place. Done this day, November 9, 2009.

/s/ Brian E. Smith Administrative Law Judge

Electronically transmitted to:

William A. Mundell, Director Registrar of Contractors

By ___________________________ ----------------------- [1] At 9:03 a.m. on October 20, 2009, the morning of the hearing, Uniacke, Respondent’s corporate officer and qualifying party, filed via email with the Office of Administrative Hearings a motion to appear telephonically due to a “medical emergency.” Due to its untimeliness, the motion was addressed as a pre-hearing matter and granted.

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