ALJDEC decisions subject to certification as final

2010A-308473353-ROC · Registrar of Contractors · 2011-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Robert Lussa. The Respondent appeared through its authorized representative, Jim Zivney. 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 B License (No. 182861) was suspended by the Registrar of Contractors (ROC) on February 6, 2010 for lack of bond. 2. The Complainant is the executor of the estate of her late brother, Dr. Dan Clark. 3. Credible testimony and evidence established that Dr. Clark entered into a construction agreement with the Respondent for the manufacture and installation of custom cabinetry for Dr. Clark’s residence for the total price of $60,721.00. 4. Credible testimony and evidence established that pursuant to the terms of the parties’ construction agreement, Dr. Clark’s estate paid $56,662.00 to the Respondent in October 2008. 5. Credible testimony and evidence established that pursuant to an agreement between the parties, Dr. Clark’s estate retained the sum of $4,059.00, which was to be paid upon the completion of the construction and proper installation of all of the specified custom cabinetry. 6. Credible testimony and evidence established that the Respondent delivered and installed the agreed upon cabinets for the kitchen and family room cabinets in Dr. Clark’s residence. 7. There was no dispute that the parties agreed to have the burl wood cabinets installed in the residence of Judith Lukas, rather than Dr. Clark’s residence, because Dr. Clark’s residence was being sold. 8. Credible testimony and evidence established that the parties also agreed that the cherry wood cabinets were to be installed in the residence of Dr. Clark’s son, rather than the residence of Dr. Clark, again, because of the fact that Dr. Clark’s residence was being sold. 9. There was no dispute that the Respondent failed to deliver and install the cherry wood cabinets. 10. The Complainant then repeatedly demanded that the Respondent either deliver and install the cherry wood cabinets or return the money that the Complainant had paid the Respondent for the manufacture and installation of the cherry wood cabinets. 11. When the Respondent failed to comply with Complainant’s repeated demands, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 12. Credible testimony and evidence established that the Respondent had been fully paid the sum $14,833.00 which was contractually due to the Respondent for the construction and installation of the agreed upon cherry wood cabinets. 13. The Respondent asserts that the cherry wood cabinets were custom furniture rather than cabinetry and that, as such, it was manufacturing work rather than construction work. 14. Credible testimony and evidence, presented at hearing, established that the custom cherry wood cabinets were custom cabinetry and that the parties’ construction agreement required that the cherry wood cabinets be manufactured and installed under the Respondent’s License with the Registrar of Contractors. 15. Credible testimony and evidence established that the Complainant has received nothing of value for the $14,833.00 that it has paid the Respondent for the construction and installation of the custom cherry wood cabinets. 16. Credible testimony and evidence established that the Respondent has failed and refuses to return the money that the Complainant has paid the Respondent for the construction and installation of the custom cherry wood cabinets. 17. Credible testimony and evidence established that the custom wood cabinetry that the Respondent manufactured and installed in the kitchen and family room of Dr. Clark’s former residence displayed unacceptable workmanship deficiencies and that the custom cabinetry was not fully completed. 18. Credible testimony and evidence established that the Respondent agreed that the construction deficiencies in the new cabinetry in the kitchen and family room areas required proper correction and that the new cabinetry was not completed. 19. There was no dispute that the Respondent referred the Complainant to a specific alternative licensed contractor for the proper correction and completion of the new custom cabinetry. 20. Credible testimony and evidence established that the alternative contractor corrected the workmanship deficiencies and incomplete work in the new cabinetry in the kitchen and family room and charged the Complainant the sum of $4,700.00 for labor and materials for the corrective action. 21. Credible testimony and evidence established that the Complainant paid the alternative contractor in full for the required corrective action and that no further corrective action is required on the custom cabinetry installed in the kitchen and family room areas of Dr. Clark’s residence. 22. Credible testimony and evidence established that the Respondent abandoned the construction project without completing the construction and installation of the cherry wood cabinets. 23. Credible testimony and evidence established that the Respondent departed from or disregarded plans and specifications in the construction of the custom cabinetry installed in the kitchen and family room areas of Dr. Clark’s residence without the consent or knowledge of the Complainant. 24. Credible testimony and evidence established that the Respondent failed to include its full license number and the acronym ROC in its construction agreement with Dr. Clark as required by applicable statute. 25. Credible testimony and evidence established that the Respondent’s construction work in the installed cabinetry in the kitchen and family room areas of Dr. Clark’s residence failed to comply with applicable workmanship and industry standards and that the cabinets were not properly completed. 26. Credible testimony and evidence established that Dr. Clark’s estate was required to pay an additional sum of $641.00 above and beyond the amount required in the parties’ construction agreement for the proper correction and completion of the installed cabinetry in the kitchen and family room in Dr. Clark’s residence. 27. Notice is taken of the Respondent’s prior 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 plans or specifications), A.R.S. § 32-1154 (A) (3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B). 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. 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, January 31, 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