ALJDEC decisions subject to certification as final

10F-0519-ROC · Registrar of Contractors · 2010-03-29

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2010

APPEARANCES: Complainant appeared and testified on his own behalf; no one appeared on behalf of Respondent. ROC Inspector Mark Alyea appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging abandonment of the project, poor workmanship, and failure to comply with a Corrective Work Order against Respondent. As noted above, Respondent did not appear at the hearing;[1] therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, including Exhibits A through F. Complainant presented evidence and testimony from himself and Inspector Alyea at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violation of the law and recommending suspension of the license unless corrective work is completed and restitution paid.

FINDINGS OF FACT 1. Respondent Savers Professional Painting and Remodeling, LLC is the holder of a class KB-02 license (No. 211086), a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform general residential and general small commercial construction. Mark Mutchmore is Respondent’s Principal and Qualifying Party.[2] 2. In December 2008, the parties entered into a contract whereby Respondent was to build an addition to Complainant’s house and remodel Complainant’s sitting room. The contract was for $75,000.00. 3. In August 2009, Complainant filed a complaint with the ROC listing numerous complaint items associated with construction work by Respondent on Complainant’s residential property, including that the job was not finished. An inspection was performed and ROC Inspector Mark Alyea issued a Corrective Work Order (“CWO”). The CWO ordered Respondent to correct many items. 4. Respondent did not correct the items or finish the project. Beginning in October 2009, Complainant began hiring others to finish the work Respondent was supposed to have completed. Exhibit E lists materials and services, and their costs, Complainant bought to finish the job, although several CWO items still remain uncorrected. 5. At hearing, Inspector Mark Alyea testified about his observations and conclusions based on two visits to the jobsite, the most recent of which was several days before the hearing. Complainant also testified about the items in the CWO. Based on the testimony of those two witnesses, this tribunal finds that the items that Respondent was ordered to correct in the CWO did not meet minimum workmanship standards. Some of them need to be corrected, and other CWO items have been corrected by others. 6. Complainant testified that Respondent had estimated a 30 to 60 day completion time for the project. By October 2009, ten months later, Complainant decided that he had given Respondent enough opportunity and moved forward with others to complete the project. Complainant also testified about Respondent’s poor work ethic (working only several hours a day for many days) and poor workmanship. This testimony is credible and is supported by other evidence in the record. 7. Complainant’s decision to use others to complete Respondent’s work is found to be reasonable under the circumstances of this case. 8. The evidence shows that Complainant has spent or will spend $23,236.22 for labor and materials to correct Respondent’s errors and finish Respondent’s unfinished work.[3] The record also shows that Complainant still owes $4,525 on the contract price. Therefore, Complainant’s amount of restitution will be discounted by that amount, making the amount of restitution supported by the record $18,711.22. Respondent owes that amount to Complainant. 9. There are also CWO items that have not been corrected. This tribunal finds that Respondent has had more than enough time to complete the job, but has failed to do so. The items still in need of correction are CWO items: Page 1—2 (baseboards), 3 (paint interior doors), 7 (paint touch up), 11 (caulking); Page 2—31 (roof fasteners showing), 32 (ceiling crack in sitting room), 36 (uneven shower tile and missing grout), 37 (missing bathroom floor tile); Page 3—40 (garage light switch), 43 (city inspection of lentils); Page 4—2 (dent in wood floor), 4 (bathroom door). 10. By failing to finish the job in a reasonable amount of time, leaving so many items unfinished and uncorrected, and by doing such poor quality work, Respondent effectively abandoned the job. It was reasonable for Complainant to use others to correct and complete Respondent’s work. Furthermore, Respondent should not perform any further work itself, as Respondent has shown that it is unable or unwilling to complete the job in a workmanlike manner.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. Complainant’s evidence is uncontested. 3. The evidence shows poor workmanship by Respondent and a failure to correct its work by complying with the CWO. It also shows an abandonment of the project without legal excuse. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. 4. Respondent’s license is current and active. 5. The appropriate sanction in this matter is to award Complainant restitution for the items that were corrected and finished by others, in the amount of $18,711.22, and to allow Respondent an opportunity to see that the other items are corrected by others or face revocation of the license. The severity of the violations in this matter call for revocation of the license should Respondent fail to make the situation right. RECOMMENDED ORDER IT IS RECOMMENDED that Class KB-02 license 211086, held by Respondent Savers Professional Painting and Remodeling, LLC be revoked beginning the effective date of the Registrar’s Order unless Respondent provides written proof of correction of the items described above and written proof of payment to Complainant of the restitution amount described above, and the Registrar of Contractors accepts such written proofs. IT IS FURTHER RECOMMENDED that if Respondent makes the corrections and payment on or before the effective date of the Registrar’s Order, and the Registrar accepts the written proofs of those actions, the license revocation shall not take place and case 10-0519 shall be closed. IT IS FURTHER RECOMMENDED that, along with any above-provided penalties, Respondent Savers Professional Painting and Remodeling, LLC pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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 29th day of March 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This tribunal received a document entitled “Surgical Information Sheet” on February 24, 2010, and again on March 1, 2010. It indicated that “Chett Saver” was to have some sort of surgery on February 25, 2010. It was not signed by a representative of Respondent (it was not signed at all), nor did it explain the circumstances of the surgery or even mention any recovery period. The document was not a proper continuance request and was not treated as one. Furthermore, it did not present enough information to show good cause for a postponement, nor did it state that Respondent’s principal and Qualifying Party Mark Mutchmore could not attend. [2] This is according to the ROC website on March 29, 2010. [3] See Exhibits B, C, D, and E. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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