ALJDEC decisions subject to certification as final

2010A-15127765-ROC · Registrar of Contractors · 2010-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2010

APPEARANCES: Complainant appeared and was accompanied by her fiancé Anthony Winters; Respondent was represented by its Managing Member and Qualifying Party Darryl Hunter, accompanied by Chris Poma. ROC Inspector Mark Alyea was present but did not testify.

WITNESSES: For Complainant: Marianne Michaels Anthony Winters

For Respondent: Darryl Hunter Chris Poma

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant and her fiancé bring this action alleging poor workmanship by Respondent regarding remodeling work Respondent did at Complainant’s home. Complainant also alleges that Respondent should return a cash deposit made for the block wall part of the project. During the opening phase of the hearing, the parties jointly addressed the workmanship items in the November 17, 2009, Corrective Work Order (CWO) issued by ROC Inspector Mark Alyea for this matter. They came to agreement on all outstanding items as follows: (1) Respondent will adjust the sliding door; (2) Respondent will repair areas where caulking is separating; (3) the door between the house and garage will be adjusted so that it closes fully and properly; and (4) Respondent will grout tile in the kitchen when Complainant chooses grout color. This left only one issue for decision: whether Respondent has violated the ROC statutes by failing to return the block wall cash deposit to Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Respondent Hunter’s Home Builders, LLC, dba Hunter’s Window and Siding is the holder of a class KB-2 license (No. 232046), 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. Darryl Hunter is Respondent’s Qualifying Party. 2. As noted, the parties settled the workmanship items at the beginning of the hearing. The only dispute addressed here is the claim that Respondent should return the deposit Complainant paid for the block wall. The evidence relevant to that issue is as follows. 3. Complainant was fixing up her house and had many different projects to do on the house in March 2009. Complainant hired Respondent initially to perform work on windows and doors. During the course of that work, the parties discussed a block wall that needed to be built. Respondent wrote an addendum to the contract to cover the block wall work. The written addendum is part of the record and is signed by Respondent, but not by Complainant. However, Complainant gave Respondent $1,950.00 as a down payment at the time that the addendum was written. 4. Hunter testified that he neglected to have Complainant sign the addendum. Complainant testified that she told Hunter not to start the work. Hunter denies that he was told not to start. The record shows that Hunter drew a diagram for the block wall work and got it approved by Complainant’s homeowner’s association. He also bought materials and ordered concrete to be delivered to the site. 5. Complainant and Winters testified that they changed their minds and decided that they did not want Respondent to do the block wall because they had found a “handyman” to do it.[1] They informed Respondent the morning that Respondent was intending to do the work. Respondent cancelled the job, but incurred expenses in preparation for it. Respondent believes that Complainant breached the block wall contract and that Respondent is entitled to keep the deposit for the expenses incurred, such as the fee for homeowner’s association approval, delivery and restocking fees for returned materials, and a cancellation fee for the concrete. 6. Complainant believes that Respondent is not entitled to the deposit because she told Hunter not to do any work until she told him to start. 7. The dispute between the parties over the deposit is a good faith contractual dispute. Each party has a reasonable belief that the other party breached the agreement. This tribunal has no authority to decide such disputes and will not do so. This tribunal concludes that Respondent’s conduct does not constitute an abandonment or refusal to perform and does not violate workmanship standards. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1), (A)(2), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(1) prohibits abandonment and refusal to perform without legal excuse. Subsection (A)(2) requires contractors to build according to plans, specifications, and building codes. Subsection (A)(23) requires licensees to comply with CWOs. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence shows that there is a good faith contractual dispute between the parties. None of Respondent ‘s actions regarding that dispute violate the statutes cited above. Respondent’s good faith belief that Respondent is not in breach of the contract and can retain the deposit for expenses incurred is supported by evidence.[5] This tribunal will not recommend discipline in such an instance. The contractual dispute may be taken to civil court. 4. Respondent has, however, agreed to perform corrective work at the home. Respondent should be held to that agreement. Once Respondent has performed the work agreed to at the hearing, this matter should be closed. RECOMMENDED ORDER IT IS RECOMMENDED that Class KB-02 license 232046, held by Hunter’s Home Builders, LLC, dba Hunter’s Window and Siding be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof of correction of the items described above, agreed to by Respondent at the hearing, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-15127765 (formerly 10-1512) shall be closed.

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, July 22, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This person turned out to be an unlicensed contractor. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] This is NOT a finding that Complainant has breached the contract, but merely that Respondent holds a good faith belief that Respondent is not in breach of contract.

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