ALJDEC decisions subject to certification as final

2010A-28509978-ROC · Registrar of Contractors · 2011-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2011 and September 7, 2011. The record was kept open until September 19, 2011, for post-hearing submissions by the parties. APPEARANCES: Connie Martin appeared personally. Joe and Sons Framing Co. was represented by its attorney, William Metler, 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. Joe and Sons Framing Co. (“Respondent”) is the holder of License No. 207667, a Class K-61 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent and Connie Martin (“Complainant”) entered into a Rough Framing Proposal dated August 31, 2009, for framing work by Respondent for a new residence being constructed by Complainant located at 9839 North Palisades Blvd., Fountain Hills, Arizona. 3. On February 16, 2010, Complainant filed a written Complaint with the Registrar alleging the following Complaint item against Respondent: “Hangers & Pass Framing Inspection.” The Registrar designated Complainant’s Complaint as Case No. 10-2850. The Registrar later re- designated the Complaint as Case No. 2010-28509978. 4. On March 2, 2010, Complainant filed the following amendment (“First Amendment”) to her Complaint: Please accept this as amendment to complaint #10-2850.

I would like this claim to go before the court + be considered for the ROC Recovery Fund.

I have documented expenditures in excess of $25,000 to complete + to correct the work that Joe + Sons started + then abandoned.

I requested in writting [sic] that Joe + Sons return to complete the work. They did not.

I also am asking that the ROC/Court require Joe + Sons to remove the lien they have on my property.

5. In response to the Complaint and First Amendment, the Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection at Complainant’s residence to view the Complaint items. That inspection resulted in Inspector Cason issuing a Corrective Work Order dated March 24, 2010, that addressed the Complaint items as follows: Complaint – Complete structural requirements specifically the hangers throughout the structure and Pass the framing inspection. Reviewed the approved building plans and the Town of Fountain Hills Building Departments [sic] correction notice for this project. Confirmed that the Respondent has not corrected the items listed in the correction notice dated October 12, 2009 from the building Inspector. The Respondent is to correct/complete all items listed on the Inspectors [sic] correction notice dated October 12, 2009 per all required building codes and approved building plans specifications by appropriate means.

Addendum complaint item # 1 – Have documented expenses acquired in excess of $25,000.00 due to work not completed and or not completed correctly that Joe & Sons started then abandoned. Not within jurisdiction of an Inspector to award monetary damages.

Addendum complaint item # 2 – Requested in writing that Joe & Sons return to complete the work. They did not. Inspector does not have jurisdiction over how Contractor’s [sic] conduct their business with their customers.

Addendum complaint item # 3 – Want Joe & Sons to remove lien on my property. It is beyond the role of an Inspector to determine if a lien is legal or not.

[Emphasis in the original.]

6. On June 4, 2010, Complainant filed a second amendment (“Second Amendment”) to her Complaint that reads as follows: Please re-open my complaint against Joe & Son’s Framing. I have been advised that this case was closed. We also would like to add a violation and complaint notice of (32) 1154-A18 that the above said contractor’s license was suspended during the time they were working on my project at 9839 N. Palisades Blvd., Fountain Hills, AZ 85268. I am requesting an administrative hearing and immediate removal of the illegal lien placed on the above said property.

7. On October 4, 2010, 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, and (23). 8. On October 15, 2010, Complainant filed her third amendment (“Third Amendment”) to her Complaint that reads as follows: Please note that the complaint/case should include a violation of A.R.S. 32-1151 which states that contractor must be licensed. Also, they are in violation of A.R.S.32-1154A [illegible].

Joe + Sons had their bond cancelled in December 08 as it was paid out on a judgment by Triangle Truss. The Bond Company RLI failed to notify the ROC of this payout until 5/19/09. Heather Law in the ROC license dept. is aware of this situation.

9. On January 21, 2011, the Registrar issued an Order Quashing Citation and Complaint and Amending Complaint based upon Complainant’s three amendments. 10. On March 24, 2011, the Registrar issued a Reissued 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, (18), and (23). 11. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. Complaint Items 12. Although he was present on the first day of hearing, neither party called Inspector Cason to testify about the Corrective Work Order issued to Respondent. 13. Complainant failed to present credible evidence to establish that Respondent failed to properly place hangers per specifications and pass inspection. On the contrary, Respondent established that it placed a hanger requested by the city inspector that was not on Complainant’s plans. 14. Respondent’s framing work passed the City of Fountain Hill’s building inspection. The city issued Complainant a certificate of occupancy, and she now resides in the residence. 15. Complainant failed to establish that Respondent did not fully comply with the Registrar’s Corrective Work Order. First Amendment 16. Complainant’s request for her “claim” to be considered for the Residential Contractors’ Recovery Fund for an administrative payout is premature and not within the scope of the present proceedings. 17. Complainant contends that Respondent abandoned the project on October 9, 2009. Respondent contends that it left Complainant’s project because she failed to pay Respondent for completed work. This dispute is being litigated in the Superior Court of Maricopa County. 18. The Registrar does not have the authority to order Respondent to remove the lien placed on Complainant’s residence for alleged non- payment of money owed by her to Respondent. This issue is being litigated in the parties’ civil litigation. Second Amendment 19. Complainant alleges that Respondent’s contracting license was suspended during the time Respondent performed work on her project. 20. Complainant alleges that Respondent abandoned her project on October 9, 2009. 21. Respondent’s contracting license was suspended for lack of bond from October 14, 2009 to October 22, 2009. Since Respondent did not perform work on Complainant’s project during that period of time, Respondent was properly licensed when it contracted with Complainant, when it performed work prior to October 9, 2009, and when it performed the remedial work required by the Registrar’s Corrective Work Order and the city inspector. 22. Complainant’s request concerning the lien placed on her residence has been addressed in her First Amendment. Third Amendment 23. Respondent’s surety, RLI Surety, sent the Registrar a Notice of Cancellation dated September 11, 2009, that advised that it elected to terminate its liability at the expiration of 30 days. 24. On October 22, 2009, the Registrar received a Reinstatement notice from RLI Surety that advised that the bond for Respondent had been reinstated, effective October 21, 2009. 25. Respondent was properly bonded by RLI Surety when Respondent contracted with Complainant, when Respondent performed its original work, and when Respondent performed remedial work required by the Registrar and the City of Fountain Hills. The Parties’ Civil Litigation 26. Complainant filed a civil lawsuit against Respondent in Case No. CV2010-092560 before the Superior Court of Maricopa County, Arizona. 27. Respondent filed a counterclaim against Complainant in the parties’ civil lawsuit. 28. In the civil lawsuit, the Honorable John R. Ditsworth granted Respondent’s Cross Motion for Summary Judgment as to Part 1 of the motion finding that Respondent “was a licensed contractor at all times material to the facts of this case.” 29. Complainant appealed Judge Ditsworth’s ruling granting Part 1 of Respondent’s Cross Motion for Summary Judgment to the Arizona Court of Appeals, Division One. 30. On June 30, 2011, the Court of Appeals issued an Order determining that Complainant’s appeal was premature for the following reason: The record indicates that the [Superior Court’s] minute entry filed on March 24, 2011, from which appellant has appealed is not final because claims remain pending in superior court, and the minute entry order does not include a determination of finality pursuant to Rule 54 (b), Arizona Rules of Civil Procedure. Therefore, the order is not appealable in its present form, and this appeal is premature. See Pulaski v. Perkins, 127 Ariz. 216, 219, 619 P.2d 488, 491 (App.1980).

31. Since the Superior Court’s ruling is not final, collateral estoppel does not apply to Complainant’s claim that Respondent was not properly licensed in this matter. Abandonment Issue 32. Complainant failed to present credible evidence establishing that Respondent abandoned the subject project. There is a bona fide financial dispute between the parties being litigated in Superior Court. Deviations from Plans or Specifications or Failure to Comply with Local Code Requirement

33. The only credible evidence that Respondent deviated from plans or specifications is that Respondent installed a hanger at a location not in the plans or specifications, but where the city inspector required Respondent to install it. 34. Respondent’s work met local code requirements. Complainant obtained a certificate of occupancy from the City of Fountain Hills. Workmanship Issues 35. Complainant failed to present credible evidence that Respondent’s work failed to meet workmanship standards. Corrective Work Order 36. There is no credible evidence establishing that Respondent failed to comply with the Registrar’s Corrective Work Order. 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), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Reissued Citation and Complaint issued by the Registrar. The evidence of record established that Respondent left the jobsite over a financial dispute with Complainant. 4. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Reissued Citation and Complaint issued by the Registrar. With the exception of the hanger required to be installed by the city inspector, there is no credible evidence that Respondent deviated from plans or specifications, or that Respondent’s work did not meet local code requirements. 5. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Reissued Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent’s work failed to meet workmanship standards. 6. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (18), as charged in the Reissued Citation and Complaint issued by the Registrar. The evidence of record established that Respondent was properly licensed when it contracted with Complainant, when it performed its original scope of work, and when it performed the remedial work required by the Registrar’s written directive and the city inspector. 7. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Reissued Citation and Complaint issued by the Registrar. The Complainant failed to present credible evidence establishing that Respondent failed to comply with the Registrar’s Corrective Work Order. On the contrary, Respondent presented evidence that it complied with the Registrar’s written directive and the work required by the city inspector. Respondent’s work passed the city inspections resulting in Complainant obtaining a certificate of occupancy. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-28509978, formerly 10- 2850, shall be dismissed on the effective date of the Order entered in the matter. 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, October 5, 2011.

/s/ Brian Brendan Tully 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