ALJDEC decisions subject to certification as final

09F-L0199-ROC · Registrar of Contractors · 2009-11-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 2009 APPEARANCES: Complainant: Steve George appeared, pro per. Respondent: Respondent failed to appear either personally or through authorized representative or counsel. 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 August 5, 2009 Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”). 2. Complainant Steve George (“Complainant”) is the owner of a residence located at 2803 E. York Avenue, Topock, Arizona (“premises/project”). 3. Respondent Matthew Allen King (“Respondent”) is an individual doing business as Jim King Son’s Trucking. Respondent holds and is the qualifying party for Arizona Contractor’s License No. 214949, Class K-41 (Dual Septic Tanks and Systems) issued by the ROC on December 18, 2005. A review of the licensing database maintained by the Registrar indicates that this license was suspended October 5, 2007, through March 24, 2008, for lack of bond, January 1 through March 24, 2004, for non-renewal and October 17, 2009, for lack of bond. 4. Complainant filed a Complaint with the Registrar on January 5, 2009, whereby he seeks a refund for money paid to Respondent for a percolation test and engineering never performed on a septic system and “tank and permits.” 5. On May 28, 2009, the Registrar issued a Citation and Complaint in Case No. L09-0199 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (1) and (7). 6. Respondent filed an Answer on June 11, 2009, wherein he affirmatively asserted, inter alia, that percolation test engineering and other preparations were performed (for the septic system) and that Complainant “suddenly…drops verbal contract” with a balance of $500.00 remaining due for preparation of septic system. 7. At the hearing, Complainant testified and submitted Exhibits C-1 through C-18 which were marked, admitted and considered. 8. Respondent failed to appear either by authorized representative or counsel. 9. On the credible testimony and uncontroverted evidence of record, the following salient facts are important to note: a. On September 17, 2008, Respondent submitted a proposal (“proposal”) to Complainant to install a “Norweco Singular 3 Bedroom [septic] System” for a total price of $10,700.00 (Exhibit C-1) based on a CAD drawing provided Respondent by Complainant (Exhibit C-2); b. On September 5, 2008, Complainant had paid Respondent Two Thousand Dollars ($2,000.00) toward the price of the proposal of which $500.00 was for the percolation test and $1,500.00 for engineering (Exhibits C-1 and C- 4); c. The proposal also provided for payments of $3,000.00 for tank and permits; $3,000.00 “when permit is ready” and the remainder due @ inspection;” d. On September 17, 2008, Respondent phoned Complainant and requested $3,000.00 for equipment which Complainant remitted via electronic credit card payment (Exhibit C-5); e. Approximately one month later, Complainant contacted Respondent regarding the status of the project. At that time, Respondent advised that the matter was still at the engineer due to problems with the premises; f. Upon further inquiry with Respondent a month later, Respondent related the same account which caused Complainant to contact another contractor, ARQ Engineering, who referred Complainant to Bruce Bosshard (“Bosshard”) of B & B Engineering (“B&B”). Bosshard related that Respondent still owed it (B&B) $900.00 for engineering on the project; g. On November 5, 2008, Complainant paid B&B $900.00 to complete the engineering (Exhibit C-6); h. On November 6, 2008, Respondent sent Complainant a copy of a Bosshard email attached to which was a drawing of the project (Exhibit C-7) which did not comport with the design previously provided Respondent by Complainant (Exhibit C-2); i. On November 8, 2008, Complainant emailed the correct conceptual drawing to Bosshard (Exhibit C-8) which reflected what Complainant intended Respondent to construct; j. On November 8, 2008, Bosshard emailed Complainant a copy of a Site Investigation Report provided B&B by Respondent and upon which Bosshard based his engineering drawings (Exhibit C-9). This report did not accurately reflect what Complainant wanted constructed on the premises; k. Complainant terminated Respondent from the project on November 12, 2008, due to the latter’s preparing plans for a two rather than three bedroom residence and requiring Complainant to have to pay twice for engineering. Complainant contemporaneously requested a refund of the monies previously paid (Exhibit C-12); l. On November 13, 2008, Respondent replied to Complainant’s email and objected to the termination. Therein, Respondent asserted, inter alia, the existence of a contract, related that extra engineering and surveying work was mandated by Complainant’s project and objected to the refund of any monies paid; m. Respondent applied for a permit thirty (30) days after doing the grading work instead of securing the permit prior to performing the work as required by law. (Exhibits C-16 and C-17) As a result, Complainant had to pay twice the permit fee, or $376.50, to get the requisite permit (Exhibit C-18); and, n. Complainant seeks a refund of the $5,000.00 paid Respondent, i.e., $2,000.00 for the percolation test and engineering and $3,000.00 for septic equipment never received, and reimbursement from Respondent of the $900.00 paid B&B for engineering based on the wrong drawing submitted by Respondent and $376.50 paid for the late permit.

APPLICABLE LAW The Citation and Complaint issued by the Registrar Case No. L09-0199 charged Respondent with possible violations of A.R.S. §32-1154 (A) (1) and (7). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

…

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 failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (1) as, by his own evidence, Complainant terminated Respondent from the project. 5. It is further 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) and caused Complainant substantial injury by failing to perform its required obligations under the parties’ proposal for which it was paid a total of $5,000.00 and causing Complainant to incur additional costs of $900.00 and $376.50 for engineering and permit fees, respectively, which were of no use to Complainant. 6. It is further determined and concluded by the weight of credible, probative and relevant evidence that Respondent failed to act in good faith subsequent to submitting the proposal and failing to comply with its terms. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing without legal or reasonable excuse.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the K- license of Respondent be suspended until the Registrar receives written proof that Respondent has remitted to Complainant the sum of $6,088.25 as and for a refund of the $2,000.00 paid Respondent for a percolation test and engineering, $3,000.00 paid Respondent for septic system equipment not provided, $900.00 paid B & B for unusable engineering work, and $188.25 (one half of the permit fee charged). IT IS FURTHER RECOMMENDED that, if Respondent remits or tenders to Complainant the above-referenced sum of $6,088.25 on or before the effective date of the Registrar’s Order then, in that event, no license suspension shall take place. IT IS FURTHER RECOMMENDED that, in the event Respondent timely remits or tenders to Complainant the above-referenced sum, Respondent’s Class K-41 license be suspended for a period of thirty (30) days commencing on the effective date of the Order entered in this matter.[1] Done this day, November 9, 2009.

/s/ Brian E. Smith Administrative Law Judge

Electronically transmitted to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 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 in this matter will be forty (40) days from the date of that certification.

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