ALJDEC decisions subject to certification as final

09F-L0324-ROC · Registrar of Contractors · 2010-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2010 and February 24, 2010 APPEARANCES: Complainant Joseph Spaziani appeared personally. Kenneth Lee Welton, doing business as Kenton Contracting, appeared personally. 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. Kenneth Lee Welton, doing business as Kenton Contracting (“Respondent”), is the holder of License No. 226419, a Class B-03 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On June 4, 2009, Joseph Spaziani (“Complainant”) filed a written Complaint with the Registrar alleging the following Complaint items against Respondent: 1) Explain how I tried to defraud my insurance company and lender (email 5-22-09). 2) Stop trying to extort money from me (email 3-9-2009 and 3-18- 2009). 3) Stop turning me in to the City for not having permits for projects you worked on. 4) Provide a copy of the signed contract that says I owe you $105,000 (invoice 3-24-09). 5) Explain who the other people are that Ken hired to work on my house, who gave him authority to hire them, how much were they paid, were they licensed and insured.

3. The Registrar designated Complainant’s Complaint as Case No. L09-0324. 4. The Registrar issued a Citation and Complaint in Case No. L09-0324 alleging violations by Respondent of A.R.S. § 32-1154(A) (7). 5. The Registrar forwarded Case No. L09-0324 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Paragraph 4 of the Complaint states that Complainant seeks to “stop the harassment, and extortion.” 7. Complainant’s Complaint listed the worksite address as 2360 Bryce Lane, Lake Havasu City, Arizona. The Complaint does not list any other worksite addresses. 8. Complainant has been a contractor in Oregon for 30 years. He still resides in Oregon. Complainant is not a licensed contractor in Arizona. 9. The subject project involved the remodeling of the subject property due to water damage. 10. Respondent submitted a proposal dated December 8, 2006, to Complainant and his wife. 11. Complainant contends that he hired Respondent at a rate of $24.00 per hour. 12. Respondent contends that the parties had a time and materials agreement. 13. Complaint item number 1 does not allege wrongdoing by Respondent. Respondent contends that Complainant received insurance proceeds for work he later excluded from the scope of the project, such as some mirrors. Complainant contends that all work was inspected by the insurer prior to Complainant being paid by the insurer. 14. Complaint item number 2 pertains to a monetary dispute between the parties. That dispute should be resolved in a civil court of competent jurisdiction. 15. Complaint item number 3 involves building permit issues between the parties on other projects. The Complaint only identified the subject property. Since the Complaint did not specifically identify those other projects, those issues are outside the scope of the Complaint. There are no building permit issues on the subject property and subject project. 16. Complaint item number 4 also deals with the parties’ financial dispute. Complainant did not allege any wrongdoing by Respondent, but instead appears to be seeking information from Respondent. 17. As to Complaint item number 5, Respondent hired Robert McCracken as a laborer on the subject project. Respondent paid Mr. McCracken an hourly wage. 18. There is insufficient evidence to establish that Respondent committed a wrongful or fraudulent act resulting in substantial injury to Complainant. 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), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The Administrative Law Judge concludes that Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. L09-0324 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, March 16, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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