ALJDEC decisions subject to certification as final

2009A-1909766-ROC · Registrar of Contractors · 2010-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2010 at 10:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Roy Johnson. 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’s License No. B. 200672-R has been suspended for non- renewal. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant to construct a new log residence for the Complainant for the total sum of $185,681.00. 3. The Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to complete the construction of the new log residence in a timely manner despite being given repeated opportunities to do so. 4. Credible testimony and evidence established that the parties had repeated meetings in attempt to resolve the Complainant’s concerns and that the Respondent repeatedly failed to promptly complete the construction of the new log residence. 5. On February 17, 2009, the Complainant issued a letter terminating the Respondent from the construction project. The letter provides, in relevant part, as follows: At this time, February 17, 2009, we are asking for the return of the Sonomex Singulair 960/500 drip septic control system you have been storing at your request which we personally purchased for $7,511.00 on 10-2-07 from Sonomex, LLC in Show Low, AZ. 6. Credible testimony and evidence established that the Respondent refused to return the drip septic system to the Complainant and that instead, the Respondent installed the Complainant’s septic system in another residence being constructed by the Respondent. 7. The Complainant then purchased a second drip septic system from Sonomex LLC for an additional $7,511.00 and caused the new septic system to be installed for the Complainant’s residence. 8. Credible testimony and evidence established that the Complainant was required to purchase and install the new septic system in order to obtain a certificate of occupancy and complete the construction of the new log residence. 9. The Complainant’s actions in purchasing and installing the replacement septic system were shown to be reasonable and justified under the circumstances. 10. Credible testimony and evidence established that the Complainant had paid the Respondent the sum of $185,681.00 when the Complainant discharged the Respondent from the construction project. 11. Credible testimony and evidence established that the new residence was not fully completed on February 17, 2009, and that the Complainant was required to cause the new log residence to be fully completed at an additional expense above and beyond the contract price of $185.681.00. 12. Undisputed credible testimony and evidence established that the Respondent performed electrical work on the Complainant’s residence and that the Respondent was paid the total sum of $5,500.00 for such electrical work. 13. There was no dispute that the Respondent is not a licensed electrical contractor and that the performance of electrical work is beyond the scope of the Respondent’s license. 14. Credible testimony and evidence established that the local building authority required the Complainant to retain a properly licensed electrical contractor to inspect and correct the Respondent’s electrical work at a cost of $845.00. 15. When the new log residence was completed, the Complainant then demanded that the Respondent reimburse the Complainant for the missing septic system and for the cost of inspecting and correcting the Respondent’s electrical work. 16. When the Respondent refused to reimburse the Complainant for his costs of purchasing a new drip septic system and inspecting and correcting the Respondent’s electrical work on the new log residence, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 17. Credible testimony and evidence established that the Respondent refused to return the Complainant’s drip septic system to the Complainant and that the Respondent knowingly installed the Complainant’s drip septic system at another residence being constructed by the Respondent. 18. Credible testimony and evidence established that the Respondent contracted to perform and performed electrical work on the Complainant’s residence and that the Respondent knew, or should have known, that the performance of such electrical work was beyond the scope of the Respondent’s license. 19. Credible testimony and evidence established that the local building authority requires that electrical work be performed by a properly licensed electrical contractor. 20. Credible testimony and evidence established that the Respondent failed to perform the electrical work that it performed on the Complainant’s new log residence in a professional and workmanlike manner. 21. The Respondent’s actions, in refusing to return the Complainant’s drip septic system to the Complainant, in installing the Complainant’s drip septic system at a different construction project, and in performing $5,500.00 worth of electrical work at the Complainant’s residence which the Respondent knew, or should have known, to be beyond the scope of the Respondent’s license, are found to constitute a wrongful act. 22. Credible testimony and evidence established that the Respondent failed in a material respect to complete the construction of the Complainant’s residence for the price stated in the parties’ construction agreement. 23. The credible evidence of record is insufficient and fails to support a finding that the Respondent failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the Respondent’s operations as a contractor. 24. 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 charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of any building codes of any political subdivision of the state in any material respect), A.R.S. § 32-1154 (A) (7) (Wrongful Act), A.R.S. § 32-1154 (A) (9) (Failure to complete a construction project for the price stated in the contract) and A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License No. B.200672-R be revoked. 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, November 16, 2010.

/s/ M. Douglas 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