ALJDEC decisions subject to certification as final

2010A-2597486-ROC · Registrar of Contractors · 2010-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Dan Gullick. 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 is the holder of License B.239422-R issued by the Registrar of Contractors. 2. The Complainant was contemplating filing a bankruptcy and wanted to put his available cash into house repairs. 3. Credible testimony and evidence established that on September 11, 2009, the Complainant and the Respondent met and discussed the Complainant’s pending bankruptcy and the construction work that the Complainant wanted to have the Respondent perform on his residence. 4. Credible testimony and evidence established that the parties signed a contract on September 11, 2009, wherein the Respondent agreed to install several air vents in the garage, new windows in the small bedroom and den, a skylight in the office, a glass block window in the den, and tile base in the hall, den and kitchen in the Complainant’s residence, for the total sum of $7,825.00. 5. There was no dispute that the Complainant paid the Respondent the agreed upon down payment of $3,521.50. 6. The Respondent then performed the agreed upon baseboard work. 7. Credible testimony and evidence established that the Complainant was pleased with the baseboard work and that on October 1, 2009, the Complainant paid the Respondent an additional $1,500.00. 8. Credible testimony and evidence established that the Complainant then filed bankruptcy on October 7, 2009. 9. Credible testimony and evidence established that the parties had agreed that the Respondent was to complete the construction work on November 9, 2009, and that the Complainant was then to pay the final money due to the Respondent under the parties’ contract after the work was completed. 10. Credible testimony and evidence established that the Complainant intended to pay the Respondent the final sum due under the parties’ construction agreement from the proceeds of the sale of an automobile. 11. There was no dispute that the Complainant did not receive the expected proceeds from the sale of the automobile. 12. There was no dispute that the Respondent failed to appear at the construction site on November 9, 2009, and that the Complainant then terminated the Respondent from the construction project and demanded that the Respondent deliver the windows and other construction materials that the Complainant had paid for, and that the Respondent provide the Complainant with an accounting of the $5,021.50 that the Complainant had paid the Respondent. 13. The Respondent declined to deliver the construction materials and refused to provide an accounting of the monies paid to it. Instead, the Respondent offered to complete the work once the Complainant’s bankruptcy was discharged and the Complainant had fully paid the Respondent for the construction project. 14. The Respondent denied that it had abandoned the construction project and asserted that it had stopped work on the project because the Complainant’s bankruptcy filing constituted a material change in the Complainant’s finances. 15. The Respondent asserted that it was not required to complete the construction project because of its concerns that it might not be paid for the completion of the construction project. 16. Credible testimony and evidence established that the Respondent was fully aware of the Complainant’s financial condition and of the Complainant’s intent to file bankruptcy when the Respondent entered into a construction agreement with the Complainant. 17. The Respondent’s actions, in knowingly entering into a construction agreement with an individual that the Respondent knew was going to file for bankruptcy and then refusing to complete the construction project when the individual did file bankruptcy, in then refusing to deliver materials that the Complainant had paid for; and in refusing to provide an accounting for the money that the Complainant had paid the Respondent, are found to constitute an abandonment or refusal to perform without legal excuse for the abandonment or refusal to perform. 18. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to complete and correct any determined deficiencies in its work. 19. Credible testimony and evidence established that the personal relationship between the parties has become strained and uncomfortable for both parties. However, the parties are all adults and are fully capable of scheduling and performing the required onsite construction work needed to complete the construction project at issue. 20. Although the Complainants concerns, frustrations, and aggravation regarding the problems he has experienced with the remodeling work on his home are understandable, construction work, such as that at issue herein, is not a perfect science, and it is not uncommon in the industry to have misunderstanding at a construction project which delay the completion of a specified project. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work. Any denial of reasonable access to the Respondent or the Respondent’s representatives may result in this matter being closed without disciplinary action against the Respondent’s License. 21. Notice is taken of the Respondent’s prior excellent License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Credible testimony and evidence supported findings which establish a violation by the Respondent of the charge provisions of A.R.S. § 32-1154 (A) (1) (Abandonment or refusal to perform without legal excuse). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s order, that the Respondent’s License No. B.239422-R shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has either properly completed the remodeling of the Complainant’s residence as set forth in the parties construction agreement or that the Respondent has been denied reasonable access to the Complainant’s residence to complete the construction project. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, August 27, 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