ALJDEC decisions subject to certification as final

2009A-4231705-ROC · Registrar of Contractors · 2010-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Tera Harshman. 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 Class B- License (No. 220805) was suspended for lack of bond on January 16, 2010. 2. This is a residential matter where the parties entered into a written construction agreement on August 19, 2008 wherein the Respondent agreed to construct a new custom residence for the Complainant for the sum of $403,783.00. 3. The parties’ written construction agreement provides that the new residence was to be completed within ten (10) months of the commencement of construction. 4. The parties’ construction agreement also provides that change orders or unusual weather conditions or “owner related” delays could extend the expected completion date. 5. Credible testimony and evidence established that the Respondent’s qualifying party was personally performing most of the construction work on the Complainant’s new residence. 6. Credible testimony and evidence established that the construction of the new residence was proceeding very slowly and that the residence was not fully dried-in on the ninth month after the commencement of construction.

7. The Complainant was increasingly dissatisfied with the length of time it was taking to complete the construction project and unhappy with the quality of the Respondent’s workmanship. 8. The Complainant was also extremely unhappy with the Respondent’s failure to answer the Complainant’s questions regarding areas of the construction project that were of concern to the Complainant. 9. On May 27, 2009 the Complainant sent an email to the Respondent expressing his dissatisfaction and concerns wherein the Complainant advised the Respondent not to proceed with further construction based upon the Respondent’s alleged past untimely, sub-standard performance and requested a formal meeting with the Respondent. 10. Credible testimony and evidence established that the Respondent then utilized the Complainant’s May 27, 2009 email as a justification to remove its construction equipment from the Complainant’s property and abandon the construction project. 11. When the Respondent failed to comply with the Complainant’s repeated demands to return to the construction project and properly correct the Respondent’s construction errors and promptly complete the construction project the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and initially moved to close the Complaint on the basis that the house had not been completed and that the complaint items could be corrected during the completion of the house or that the complaint items addressed areas beyond the jurisdiction of the Registrar of Contractors. 13. The Complainant then filed amendments to his Complaint. Pursuant to the filing of the amendments to the Complaint the assigned Agency Inspector conducted a second onsite inspection and then issued a Corrective Work Order directing the Respondent to properly perform corrective work on the Complainant’s residence. 14. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 15. Credible testimony and evidence established that the Complainant was willing to grant the Respondent access to perform the corrective action directed in the Corrective Work Order and that there was no unreasonable denial of access to the Respondent. 16. When the Respondent failed to comply with the terms of the Corrective Work Order the Complainant retained an alternative licensed contractor to properly correct and complete his new residence. 17. A homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. The Complainant’s actions in retaining an alternative licensed contractor to properly correct and complete the construction of his new residence were shown to be reasonable and justified under the circumstances. 18. Credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications without the consent of the Complainant. 19. Credible testimony and evidence established that the Respondent failed to perform its construction work in accordance with applicable workmanship and industry standards. 20. Credible testimony and evidence established that the there were no unusual weather conditions or changes by the Complainant that would have delayed the completion of the construction project. 21. Credible testimony and evidence established that the Respondent failed to complete the construction of the Complainant’s residence for the price stated in the parties’ construction agreement. 22. Credible testimony and evidence established that the Complainant has been required to correct the Respondent’s construction errors and complete the construction of his new residence with an alternative contractor at an increased cost. 23. The credible evidence of record was insufficient and failed to support a finding that the Respondent knowingly contracted beyond the scope of the Respondent’s Class B- License. 24. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to properly correct its workmanship and complete the construction of the Complainant’s residence by complying with the terms and conditions of the Corrective Work Order issued by the Registrar of Contractors. 25. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License. 26. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. 27. Credible testimony and evidence supported findings which justify the imposition of appropriate disciplinary action against the Respondent’s Class B- License.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154A (1) (Abandonment), A(2) (Departure from or disregard of applicable plans and specifications), (A)(9) (Failure to complete a construction project for the price stated in the contract), A(23) (Failure to take appropriate corrective action) and A(3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. 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, July 19, 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