ALJDEC decisions subject to certification as final

09F-T0421-ROC · Registrar of Contractors · 2009-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2009 and October 19, 2009 at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Robert J. St. Clair. The Respondent appeared through its authorized representative, Scott Parker. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of a Class KB-02 License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written agreement for the performance of construction work on the Complainant’s existing residence. 3. The parties are in sharp dispute as to what the terms of their agreement is and are in sharp dispute as what was supposed to be constructed for the Complainant. 4. There was no dispute that the Complainant paid the Respondent $25,000.00 as a down payment for the construction project. 5. The Complainant was dissatisfied with the Respondent’s workmanship on her residence and when she discovered that she and the Respondent had very different ideas as to what exactly was to be constructed and what the total cost of the construction project was to be, she canceled the construction project and gave the Respondent one final opportunity to promptly complete the construction work that it had already started. 6. When the Respondent failed to return to her residence and properly complete the construction work, the Complainant then terminated the Respondent from the unfinished construction project. 7. The Complainant then demanded the return of a portion of the $25,000.00 that she paid to the Respondent. 8. When the Respondent refused to return a portion of the $25,000.00 and asserted that additional money was due to the Respondent for its completed construction work the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 9. The credible evidence of record adequately demonstrated a dispute between the parties regarding the terms of their construction agreement and what, if any, amount of money is due and owing to the Complainant from the Respondent or from the Complainant to the Respondent. 10. The parties’ contractual and monetary disputes are found to be good faith disputes which will necessarily involve a monetary adjudication and which should be resolved in a civil court of competent jurisdiction. 11. Credible testimony and evidence established that the Respondent demolished a portion of the Complainant’s masonry wall without the Complainant’s permission. 12. Credible testimony evidence established that the Respondent knowingly allowed underage relatives and friends of the Respondent’s employees to enter into the Complainant’s residence and that some of the friends and underage relatives performed unskilled work on the construction project.

13. The Respondent’s action in knowingly allowing children and non- employees to participate in construction work on the Complainant’s residence is found to constitute a violation of applicable safety and labor laws. 14. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner by demolishing a portion of the Complainant’s masonry wall without the Complainant’s permission and violating applicable safety and labor laws, are found to constitute a wrongful act. 15. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, particularly in view of the extreme personal antipathy between these parties, the Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor to replace the damaged portion of the Complainant’s masonry wall. 16. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act) and A.R.S. §32-1154 (A) (12) (Failure to comply with safety or labor laws) and A.R.S. § 32-1154 (A) (3): NAMELY RULE R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts, until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction. As such, the Registrar will not address the parties’ contractual and monetary dispute in this forum and no discipline will be imposed upon the Respondent’s License as relates to the parties’ monetary and contractual dispute.

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class KB-02 License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has, utilizing a properly licensed contractor, caused the Complainant’s masonry wall to be properly corrected. It is further recommended that if the Respondent properly causes the accomplishment of the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead the Respondent’s Class KB-02 License be placed on disciplinary probation for a period of sixty (60) days. In the event of certification of this 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 the certification.

Done this day, October 21, 2009

______________________________________ M. Douglas 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 ___________________________ -----------------------

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