ALJDEC decisions subject to certification as final

2010A-308472737-ROC · Registrar of Contractors · 2011-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Jeffrey C. Matura. The Respondent appeared through its authorized representative, William Coupland. 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 Class K-61 (247576) License was suspended for non- renewal on September 1, 2010, by the Registrar of Contractors. The Respondent is not able to contract with its Class K-61 License at this time. 2. The Respondent began construction work on the remodeling project at the Complainant’s residence on April 12, 2010, pursuant to oral bid from the Respondent. 3. On April 12, 2010, at 5:14 p.m., the Respondent issued an email to the Complainant which provided, in relevant part, as follows: I understand that we have made lots of changes in the original bid which is why we did not request a signed contract and down check prior to the start date. It is pertinent we collect a signed contract to continue and a down check of 70%. This is part of how we keep our overhead and prices low. This down check enables us to avoid paying interest on your materials which is why we have no mark up on materials. I have attached the proposal from [sic] this morning with the down check of $5,419.36. The remaining 30% is only collected upon final walk through and inspection by you and Wil. I will give Wil a hard copy of the proposal for you to sign tomorrow. If you are unable to pay the initial 70% at this time, please let me know and I will work with you to set up a payment plan. 4. Credible testimony and evidence established that on April 13, 2010, the Respondent then provided the Complainant with a written proposal that the Respondent postdated to April 11, 2010, for remodeling work on the Complainant’s existing residence for the total sum $7,345.64. 5. Credible testimony and evidence established that the Respondent had already started construction work on the Complainant’s residence when the written proposal was submitted to the Complainant. 6. Credible testimony and evidence established that the written proposal was signed by the Complainant but not by the Respondent. 7. The Respondent allegedly attached a Change Order to the Respondent’s written proposal which provided for a price of $518.22 for work on the Complainant’s French doors, smoke detectors, tile and new faucets for the hall bathroom, and an indefinite amount up to $2,000.00 for work on the Complainant’s fireplace. 8. Credible testimony and evidence established that the Change Order was not signed by the Complainant, and there was no credible evidence that the Complainant agreed to the terms of the Change Order. 9. Credible testimony and evidence established that the Complainant declined to accept the Respondent’s requirement in the written proposal that she pay the Respondent a down payment of $5,419.36. Instead, she offered to make payments to the Respondent based upon the percentage of construction work that was actually completed by the Respondent. . 10. Credible testimony and evidence established that the Respondent accepted the Complainant’s payment terms and that the Respondent then continued with the construction work on the Complainant’s residence that the Respondent had started on April 12, 2010. 11. Credible testimony and evidence established that the Complainant paid the Respondent $2,000.00 on April 12, 2010. 12. The Complainant then paid the Respondent an additional payment of $2,000.00 on April 13, 2010. 13. On April 18, 2010, the Complainant paid the Respondent an additional $1,500.00. 14. On April 19, 2010 the Complainant paid the Respondent an additional $1,200.00. 15. Credible testimony and evidence established that during the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship and that the parties’ personal relationship at the construction site deteriorated rapidly. 16. The Respondent then abruptly left the jobsite, leaving both of the Complainant’s bathrooms in an unfinished and nearly inoperable condition. He refused to return to complete the construction project unless the Complainant agreed to pay the Respondent additional money before the construction project was completed. 17. The Respondent’s actions, in accepting the payment terms offered by the Complainant, and then refusing to complete the unfinished construction project unless the Complainant agreed to pay the Respondent additional money before the construction project was completed, are found to constitute an abandonment of the construction project. 18. When the Respondent failed to return to her residence to complete the construction project despite her demand that the Respondent do so, the Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors. 19. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 27, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 20. Credible testimony and evidence established that on June 4, 2010, the Respondent agreed to comply with the terms of the Corrective Work Order provided that the Complainant pay the Respondent an additional $2,972.05 for the completion of the ordered corrective work. 21. The Complainant declined to pay the Respondent additional monies to correct its errors and omissions at the jobsite. 22. Credible testimony and evidence established that the Respondent failed to comply with the terms of the May 27, 2010 Corrective Work Order. 23. The Complainant then retained a professional to inspect her residence and filed an Addendum to her complaint against the Respondent. 24. The assigned Agency Inspector than performed a second onsite inspection and on July 8, 2010, issued a second Corrective Work Order directing the Respondent to perform designated corrective action on the Complainant’s residence. 25. Credible testimony and evidence established that the Respondent failed to comply with the terms of the July 8, 2010 Corrective Work Order. 26. Credible testimony and evidence established that the Complainant has been unable to fully utilize both of the bathrooms in her residence since the start of construction work on her residence on May 12, 2010. 27. Credible testimony and evidence established that the Respondent failed to obtain a required building permit for the remodeling work performed at the Complainant’s residence and that consequently, the local building authority was unaware of the construction project at issue. 28. Credible testimony and evidence established that the Respondent failed to request the local building authority to perform any of the onsite inspections required by local building codes for this type of remodeling construction project. 29. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s residence failed to comply with applicable workmanship and industry standards and that most, if not all, of the Respondent’s construction work will have to be removed and properly replaced. 30. Credible testimony and evidence established that the Complainant has received little, if anything, of value for the $6,700.00 that she has paid the Respondent. 31. Notice is taken of the Respondent’s License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence 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 building codes), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A)(3), namely, rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $1,000.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101 (A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, February 7, 2011.

/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