ALJDEC decisions subject to certification as final

2010A-22839276-ROC · Registrar of Contractors · 2010-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2010 APPEARANCES: Ted and Cherry Plambeck appeared personally. Side Jobs, Inc. was represented by its attorney, J. Phillip Glasscock, Esq. 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. Side Jobs, Inc. (“Respondent”) is the holder of License No. 245138, a Class B-3 contracting license issued by the Registrar of Contractors (“Registrar”). 2. In 2009, Ted and Cherry Plambeck (“Complainants”) hired Respondent to perform remodeling work at their residence in Phoenix, Arizona. 3. On November 9, 2009, Respondent began work on Complainants’ project. 4. Part of Respondent’s scope of work was to obtain new kitchen cabinets and to install them. Respondent did not receive the new cabinetry until December 23, 2009, due to the manufacturer’s schedule. 5. On December 25, 2009, Complainant Cherry Plambeck left a voice mail message on Mickey Cadwell’s cellular telephone demanding to know when Respondent would install the new cabinetry. Mr. Cadwell is Respondent’s qualifying party and corporate officer. 6. A dispute developed between the parties. Respondent wanted the Registrar to perform a courtesy inspection to attempt to resolve the parties’ dispute. Complainants decided that they wanted to file a formal Complaint against Respondent with the Registrar. 7. On December 29, 2009, Complainants filed a written Complaint with the Registrar alleging specific items of deficient workmanship by Respondent on the subject remodeling project. 8. The Registrar initially designated Complainants’ Complaint as Case No. 10-2283, but later re-designated it as Case No. 2010-22839276. 9. Complainant is determined to have ordered Respondent off the project. 10. Complainants hired Jeremy Krause, an unlicensed contractor doing business as Little Tree Home Services, to finish Respondent’s scope of work. 11. At the hearing, Mr. Krause candidly testified that the value of the scope of work he performed, including labor and materials, exceeded the sum of $1,000.00. 12. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view the Complaint items. That jobsite inspection resulted in Inspector Alyea issuing a Corrective Work Order dated February 5, 2010, which addressed each Complaint item as follows: Contractor to correct by appropriate means the following. 1. The baseboards that are painted roughly, in the entry foyer, the kitchen and the living room. 2. The receptacle in the dining room under the bar and that is on the other side of the kitchen sink, It’s [sic] not working properly. 3. The half of the electrical receptacle on the east wall of the living room that is controlled by the switch on the west wall of the dinning [sic] room. [sic] Is not working. 4. The stucco that was patched around the exterior side of the back patio where the new pair of French doors were installed, [sic] was not painted. 5. The new pair of French doors that was installed by the contractor at the back patio was not painted. Also the jamb and the exterior casing was [sic] not painted.

No action required by the contractor for the following. 1. The interior doors and the casing are painted correctly. 2. The blue paint in the kitchen, [sic] at the north wall is painted correctly. 3. The blue paint in the breakfast knook [sic] is also painted correctly. This is at chair rail height. 4. All the cabinets in the kitchen were installed by another contractor. 5. I don’t feel the contractor soiled the carpet during the construction. The carpet is six years old. 6. The other cabinets, washer and dryer area, refrigerator ice and water, and electrical fixtures were all completed by and [sic] other contractor. 7. As an Arizona R.O.C. inspector, I don’t have the authority over the contractor on how he runs his business of dividing his time between the jobs he is running.

13. At the time Inspector Alyea conducted his jobsite inspection, Mr. Krause was performing work at the jobsite. 14. By letter dated February 10, 2010, Complainant Cherry Plambeck responded to Inspector Alyea’s Corrective Work Order. Ms. Plambeck wrote, among other things, the following: On the Corrective Work Order, you have asked Mickey to correct some items. We do not want just some of the baseboards, doors, trim corrected, as they are all the same rough finish. We’ll hire someone else to do this work; we don’t want Mickey ruining any more paint in our house. Also, we do not want Mickey to paint our brand new French Doors the same unacceptable way he painted the rest of our doors. We don’t want him to paint the inside or the outside as we’re afraid we’ll then have more work to correct. (Emphasis in the original).

15. In her letter, Ms. Plambeck further wrote the following: We’ll have to pay another painter to touch-up thru-out [sic] the house. We need the money due us from Mickey so we can hire someone else to correct the unacceptable paint job. We have no confidence in Mickey and his crew. We do not want them alone in our home and we cannot afford to take off work to be there with them. We no longer trust them.

16. By the time of Ms. Plambeck’s February 10, 2010 letter, Complainants had already hired Mr. Krause to perform work similar in scope to Respondent’s scope of work. At that point in time, Mr. Krause accepted responsibility for any work he touched that had been performed by Respondent, albeit as an unlicensed contractor. 17. Respondent attempted to contact Complainants at least three times during the period given to comply with the Corrective Work Order. As evidenced by Ms. Plambeck’s voicemail message left on Mr. Cadwell’s cellular telephone on Christmas Day, telephone communication was an acceptable means of communication for the parties. 18. On March 9, 2010, Inspector Alyea issued an amended Corrective Order, which addressed a monetary dispute raised by Complainants as follows: No action required of the contractor for the following. 1. The 3,885.00 [sic] that the complainant wants the contractor to pay her back. The complainant gave the contractor a 5,000.00 [sic] deposit of a 15,382.93 [sic] contract. It is my opinion that the contractor did use the 5,000.00 [sic] for the project and now leaving a zero balance.

19. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1124(B), (17), and (23). 20. The Registrar forwarded Case No. 2010-22839276 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 21. At the hearing, Inspector Alyea testified consistently with his opinions reflected in the Corrective Work Order and the amended Corrective Work Order. 22. In light of Mr. Krause’s unlicensed contracting on the subject property, he is determined to lack credibility as an expert witness opining on Respondent’s workmanship. 23. Respondent is determined not to have abandoned Complainants’ project. Respondent tried telephoning Complainants several times to gain access to Complainants’ residence in order to comply with the Corrective Work Order. However, it is very clear from the evidence of record that Complainants did not, and do not, want Respondent to return to their residence. Complainants hired Mr. Krause shortly after filing their Complaint with the Registrar. 24. Respondent exceeded the scope of its Class B-03 contracting license by not subcontracting the electrical scope of work on Complainants’ remodeling project to a licensed electrical contractor. Respondent hired an unlicensed union electrician to perform the electrical scope of work. 25. As a result of Mr. Krause performing unlicensed contracting involving remedial work to Respondent’s scope of work, Respondent is no longer responsible for performing the remedial work required by the Registrar’s written directive, the exception being any electrical work performed by Respondent’s unlicensed electrician. Respondent is determined to be responsible for causing a properly licensed contractor to inspect and, if necessary, repair any work performed by Respondent’s unlicensed electrician at Respondent’s sole cost and expense. However, Respondent is not responsible for any work performed by Respondent’s unlicensed electrician if Mr. Krause performed any work to such electrical work. 26. Respondent’s invoices do not list the acronym “ROC” before its contracting license number, as required by statute.[1] 27. Respondent is determined to have completed work valued at least $5,000.00, the amount of the down payment paid by Complainants to Respondent. 28. Complainants’ claim for restitution in the amount of $3,885.00 is determined to be without merit. Such work could have been performed by Respondent to minimum workmanship standards as required by the Corrective Work Order had Complainants not hired the unlicensed contractor, thereby denying access to Respondent to perform any required remedial repairs. In addition, Complainants’ claim for compensation includes speculative compensatory damages, such as $500.00 for “[Respondent] didn’t protect our belongings, carpet; utter frustration of dealing with Mickey,” a claim outside the authority of the Registrar. 29. Any allegation made by Complainants not specifically addressed above is determined either to lack credible evidence to support a finding of a violation or failure to meet workmanship standards for the industry, or to be outside the jurisdiction of the Registrar. 30. A review of the Registrar’s official electronic records reveals that Complainants’ Complaint is the only posted complaint against Respondent’s contracting license. 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), Complainants have 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 the conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (1) by abandoning Complainants’ project, as charged in the Citation and Complaint issued by the Registrar. Complainants failed to sustain their burden of proof on this issue. 4. The evidence of record does not support the conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2) by deviating from plans or specifications, as charged in the Citation and Complaint issued by the Registrar. Complainants failed to sustain their burden of proof on this issue. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3) by failing to subcontract electrical work performed on Complainants’ project to an appropriately licensed electrical contractor. The evidence of record supports this conclusion. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), by failing to list on its invoices the acronym “ROC” before its contracting license number. The evidence of record supports this conclusion. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as charged in the Citation and Complaint issued by the Registrar. The factual basis for this conclusion is Respondent’s performance of electrical work by hiring an unlicensed electrician, which is beyond the scope of its Class B-3 general remodeling & repair contracting license. The scope of the Class B-3 license is as follows: “Remodeling or repair of an existing residential structure or appurtenance except for electrical…which must be subcontracted to an appropriately licensed contractor.” 8. The evidence of record does not support a conclusion that Respondent violated the terms of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Prior to the issuance of the Registrar’s written directive, Complainants had hired an unlicensed contractor to perform remedial work at Complainants’ direction, thereby constructively denying Respondent the ability to perform any remedial work required by Inspector Alyea. Further, Respondent attempted unsuccessfully on at least three occasions to contact Complainants telephonically for timely access to comply with the Registrar’s written directive, which was a means of communication used in the past by the parties. 9. The evidence of record does not support a recommendation from the Administrative Law Judge that Respondent provide restitution to Complainants in this matter pursuant to A.R.S. § 32-1156.01. RECOMMENDED ORDER Respondent’s License No. 245138 shall be suspended on the effective date of the Order entered in Case No. 2010-22839276 until the Respondent provides written proof to the Registrar, and the Registrar approves such proof, that Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B), and that Respondent subcontracted with a properly licensed electrician, at Respondent’s sole cost and expense, who completed an inspection of the electrical work performed by Respondent’s unlicensed contractor and completed repairs to any deficient electrical workmanship, except any electrical work subsequently performed by Mr. Krause. If Respondent provides written proof to the Registrar, and the Registrar approves such proof, the Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B), and that Respondent subcontracted with a properly licensed electrician, at Respondent’s sole cost and expense, who completed an inspection of the electrical work performed by Respondent’s unlicensed contractor and completed repairs to any deficient electrical workmanship, except any electrical work subsequently performed by Mr. Krause, on or before the effective date of the Order entered in Case No. 2010-22839276, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class B-3 contracting license shall be placed on probation for a period of days commencing on the effective date of the Order entered in Case No. 2010-22839276 or the date on which the Registrar approves Respondent’s proper compliance with the terms of the Order entered in Case No. 2010- 22839276, whichever is later. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period and only if no claims are then pending. 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, September 28, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s business card does read “Lic. ROC Commercial 245137…Residential 245138.” It is clear that the two licenses are issued by the Registrar.

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