ALJDEC decisions subject to certification as final

10F-T0023-ROC · Registrar of Contractors · 2010-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22, 2010 APPEARANCES: Stephen J. Szpisjak appeared personally. Eagle Pro Enterprises, Inc., doing business as D’ Vernon Builders, was represented by its president and qualifying party, Vern Staggs. 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. Eagle Pro Enterprises, Inc., doing business as D’ Vernon Builders (“Respondent”), is the holder of License No. 232922, a Class KB-01 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent entered into a written agreement dated February 12, 2009, with Stephen Szpisjak (“Complainant”) and his wife, Joyce, for a remodeling and addition project at the Szpisjak residence located at 13930 N. Oracle Road, Tucson, Arizona. 3. On July 13, 2009, Complainant filed a written Complaint with the Registrar alleging statutory violations by Respondent pertaining to the subject project. The Registrar designated the Complaint as Case No. T10-0023. 4. The Registrar issued a Citation and Complaint in Case No. T10-0023 charging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), and (9). 5. The Registrar forwarded Case No. T10-0023 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Complainant traveled from Illinois to Tucson during the remodeling and addition project. When in Illinois, Complainant stayed in contact with his wife regarding project issues. Complainant’s wife, son, and family dogs were present at the residence during the project. 7. Complainant alleged that Respondent’s framing subcontractor used mold infested lumber in the new addition. Respondent’s framing subcontractor removed the objectionable lumber from the project site. The objectionable lumber was replaced with new lumber. 8. In Arizona, roof trusses are normally on 24” centers. Complainant wanted the trusses on 16” centers, which he claimed is the standard spacing in Chicago. Originally, Respondent ordered the roof trusses based upon 24” center measurements. Once the discrepancy was noticed, Respondent ordered additional roof trusses based upon 16” measurements. The roof trusses were then installed on 16” centers. 9. The parties’ written contract specified the following new roof system: “7. Roofing - …c) Install new PVC single-ply membrane roof system.” 10. In November 2008, Complainant and Ms. Szpisjak met with Vern Staggs, Respondent’s president and qualifying party, and Hernan Navarro of Navarro Roofing Co., Inc. (“Navarro”) to discuss the new roof to be installed on Complainant’s new addition, existing house, front porch, and garage. Complainant contends that he and his wife specified IBC Roofing’s White 80 Mil PVC roofing product with a lifetime guarantee. 11. Complainant paid Respondent the sum of $14,500.00 for the roofing work to be performed by Navarro. Respondent paid Navarro that sum of money prior to the work being performed. 12. On April 28, 2009, Navarro appeared at the subject jobsite with non- conforming roofing material. Ms. Szpisjak noticed the non-conforming roofing material and requested that the work stop until the proper material could be delivered and installed. 13. Ms. Szpisjak went behind Navarro’s truck parked in front of her garage and climbed a ladder belonging to either Respondent or Navarro to obtain a sample of the delivered roofing material from the roof. Mr. Stagg attempted to stop Ms. Szpisjak from going behind the truck and climbing the ladder because he had concerns for her safety. Mr. Stagg even offered to obtain a sample for her. Mr. Stagg’s safety concerns appear reasonable. Ms. Szpisjak’s actions potentially put her at risk of injury and her actions exposed Respondent and Navarro to possible liability if she had injured herself. This is not to say that Ms. Szpisjak could not have accessed the roof using her own ladder from a safe location away from construction activities. 14. Navarro returned the $14,500.00 payment to Respondent, who forwarded it to Complainant. Navarro quit the project. 15. A subsequent roofing subcontractor delivered and installed the roofing system requested by Complainant and his wife. 16. There is no credible evidence that either Respondent and/or Navarro engaged in fraud concerning the roofing system. To establish a finding of fraudulent conduct by those entities, Complainant must show the following elements: “(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and proximate injury.” Carrel v. Lux, 101 Ariz. 430, 434, 420 P.2d 564, 568 (1966); Nielson v. Flashberg, 101 Ariz. 335, 338-39, 419 P.2d 514, 517-18 (1966). Complainant failed to show a concurrence of those nine elements. 17. During the course of the project, there were seven change orders. The parties executed Change Orders 1, 2, and 5. Complainant disputed portions of Change Orders 3, 3A, 4, and 4A. 18. By letter dated June 10, 2009, Respondent’s counsel made a demand for payment of undisputed portions of Change Orders 3 and 4.[1] 19. Respondent’s scope of work on the project passed local building code inspections. 20. On July 1, 2009, Complainant paid Respondent the final payment for the project, including the 5% project retention, notwithstanding that Complainant and his wife did not sign the outstanding change orders. 21. The parties’ monetary and scope of work dispute as to Change Orders 3, 3A, 4, and 4A, if still at issue, should be resolved in a civil court of competent jurisdiction. 22. Any allegation contained in Complainant’s Complaint not specifically addressed in the above Findings of Fact is determined to either be outside the jurisdiction of the Registrar, to have be appropriately rectified by Respondent, or to lack sufficient evidence of record to support a finding of a statutory violation by Respondent. 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 evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (7), and (9), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proof as to those charged violations. The above Findings of Fact support this conclusion. RECOMMENDED ORDER The Citation and Complaint in Case No. T10-0023 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, April 12, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Change Orders 3A and 4A were prepared by Respondent after recalculating some charges due to Complainant’s protest.

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