ALJDEC decisions subject to certification as final

2010A-25453454-ROC · Registrar of Contractors · 2010-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, John L. Lohr. The Respondent appeared on his own behalf. 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-3.116648-R is on suspended status for non- renewal. 2. The Respondent, Wood Done Wright, is a sole proprietorship owned and operated by Daryl Tollefsrud. 3. The Complainant is the Respondent’s sister-in-law. 4. This is a residential matter where the Complainant entered into discussions with the Respondent regarding an extensive remodeling of her residence. 5. On May 12, 2007, the Complainant paid a $10,000.00 deposit to the Respondent to assure that the Respondent would be available to perform her future construction project. 6. On February 5, 2008 the Respondent provided the Complainant with a hand written “Project Draft” document providing the scope of work that the Respondent was going to perform in the Complainant’s residence. 7. The Project Draft document provides that the Respondent is to perform extensive remodeling work on the Complainant’s residence including work on the Complainant’s kitchen, laundry room, family/dining room, living room and patio cover. 8. Credible testimony and evidence established that in the Project Draft document the Respondent agreed to complete the entire remodeling construction project for the total sum of $117,060.00. 9. Credible testimony and evidence established that the Respondent agreed to fully complete the construction project within nine (9) months of the start of the construction project. 10. Credible testimony and evidence established that the Respondent then prepared a typed duplicate of the hand written Project Draft document which was to serve as the construction contract for the remodeling project. 11. The Complainant signed the written document and returned it to the Respondent. 12. Credible testimony and evidence established that on February 8, 2008 the Complainant paid the Respondent an additional $80,000.00 and the Respondent agreed to begin work on the construction project. 13. Credible testimony and evidence established that the Respondent failed to perform any work on the construction project through the month of August, 2008. 14. The Complainant was dissatisfied with the Respondent’s lack of progress and demanded that the Respondent return the Complainant’s money to her. 15. The Respondent then promised the Complainant that he would complete the agreed upon construction project in a timely manner and the Complainant reluctantly decided to allow the Respondent to proceed with the construction project. 16. Credible testimony and evidence established that the Respondent began work on the Complainant’s custom cabinets in October, 2008. 17. Credible testimony and evidence established that the Respondent never completed the custom cabinets and that no cabinets have ever been delivered to the Complainant. 18. Credible testimony and evidence established that the Complainant purchased a new refrigerator, oven, cook top and dishwasher for the sum of $5,876.53 for installation in her kitchen when the remodeling project was completed. 19. Credible testimony and evidence established that the Respondent then required the Complainant to deliver her new kitchen appliances to his shop so that the new cabinets could be properly sized to the correct dimensions of the new appliances. 20. The Complainant became increasingly dissatisfied with the Respondent’s failure to complete the agreed upon construction project and in March 2009 the Complainant again demanded the return of the money that she had paid the Respondent. 21. The Respondent then presented the Complainant with a spreadsheet showing the Respondent’s alleged costs and demanded that the Complainant agree to modify the parties’ construction agreement and pay the Respondent additional money to complete the agreed upon construction project. 22. When the Complainant refused to pay the Respondent any additional money the Respondent abandoned the construction project. 23. The Complainant then demanded that the Respondent return the $90,000.00 that she had paid the Respondent and that the Respondent release the new appliances that she had delivered to the Respondent’s shop. 24. When the Respondent refused to return any of the Complainant’s money and refused to release the Complainant’s appliances to her the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 25. Credible testimony and evidence established that the Respondent performed no remodeling work on the Complainant’s residence. 26. The only work that the Respondent did perform was the partial construction of some of the agreed upon custom kitchen and laundry room cabinets. 27. Credible testimony and evidence established that the cabinets were not constructed in accordance with plans and specifications and that either new cabinets would have to be constructed that would properly fit in the space available in the Complainant’s residence or that the physical dimensions of the Complainant’s residence would have to altered to fit the partially completed custom cabinets. 28. Credible testimony and evidence established that the new cabinets were never completely sanded and have not been finished or stained and that some of the cabinets are showing signs of deterioration due to the Respondent’s failure to properly store the cabinets. 29. The Respondent has refused to return the Complainant’s new appliances to her based on the Respondent’s assertion that the new appliances are now an integral part of the partially completed custom cabinets. 30. Credible testimony and evidence, presented at hearing, established that the Complainant’s appliances are not an integral portion of the unfinished cabinets and that there is no valid basis for the Respondent’s refusal to return the appliances to the Complainant. 31. Credible testimony and evidence established that the parties entered into a typed construction agreement prepared by the Respondent and that the Respondent has refused to provide the Complainant with a copy of the parties’ typed construction agreement. 32. Credible testimony and evidence established that the hand written Project Draft document and the typed duplicate of the Project Draft document prepared by the Respondent fail to contain the minimum elements of a construction agreement as required by applicable statute. 33. The Respondent’s actions, in failing to perform a construction project for the price stated in the parties’ construction agreement and then refusing to complete the construction project unless the Complainant agreed to pay him additional monies, are found to constitute an abandonment of the parties’ construction agreement. 34. Credible testimony and evidence established that the Complainant has received nothing of value from the Respondent for the $90,000.00 that she has paid to the Respondent to perform the extensive remodeling of her residence and that the Respondent has wrongfully refused to return $5,876.53 worth of new appliances to the Complainant. 35. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Credible testimony and evidence, presented at hearing, supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A)(1) (Abandonment), A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications), A.R.S. § 32- 1154 (A) (9) (Failure to complete a construction project for the price stated in the contract or any modification of the contract) and A.R.S. § 32-1154 (A) (13); NAMELY; A.R.S. § 32-1158 (Minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended that that Respondent’s License No. B-3.116648-R be revoked on the effective date of this Order. 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, September 10, 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