ALJDEC decisions subject to certification as final

2010A-308473359-ROC · Registrar of Contractors · 2010-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Sally Clement. 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-3 License (No. 227172) was suspended on November 12, 2010, for lack of bond. 2. There was no dispute that the Respondent entered into an oral agreement with the Complainant wherein the Respondent agreed to install wall paper in the Complainant’s kitchen area for the sum of $710.00. 3. Although there was no dispute that the parties had entered into an oral agreement for the installation of the wall paper the parties were in sharp dispute as to whether their oral agreement included work on the Complainant’s baseboards. 4. There was no dispute that on Saturday, May 22, 2010, the Respondent began the installation of wallpaper in the Complainant’s kitchen area. 5. Credible testimony and evidence established that the Respondent inadvertently damaged some of the Complainant’s drywall when the Respondent removed the old baseboards and that the Respondent refused to paint the new baseboards on the basis that it was allegedly not part of the parties’ oral construction agreement. 6. Credible testimony and evidence established that the Respondent then began the installation of the wall paper. 7. Credible testimony and evidence established that the Complainant was extremely dissatisfied with the Respondent’s workmanship and stopped the wall paper application work and asked the Respondent to leave her residence. 8. Credible testimony and evidence established that the Complainant then refused to pay the Respondent for its work at her residence. 9. The Complainant then demanded that the Respondent pay the Complainant for the damaged wall paper and for the cost of removing the damaged wall paper. 10. When the Respondent refused to pay for the damaged wall paper and the removal of the damaged wall paper the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 11. The complaint provides, in pertinent part, as follows: I want her to pay me $300.00 total. $200 is so I can re-buy the wallpaper she hung upside down & sloppy-and $100 to pay someone to rip down her sloppy work. …. 4. I do not want Sally Clement in my house to do any more work(She was very sloppy with the wallpaper not to mention the hole she left in the walls due to her inexperience taking out baseboards. …. 12. On May 27, 2010 the assigned Agency Inspector issued a letter advising the Respondent of an opportunity to inspect the complained of work. The letter provides, in pertinent part, as follows: Statutes require that the contractor be allowed, upon request, to inspect the work complained of within fifteen days of the date of receipt of this notice. Further, if the complainant refuses to allow the contractor to inspect the work within that time frame, the complaint will be closed and no citation can be issued. 13. No request to inspect the complained of work was filed by the Respondent. 14. On June 8, 2010 the Complainant filed a request for an administrative hearing. The request for hearing provides, in relevant part, as follows: CC&R … is not welcome back into my home to fix any work. As stated in my compliant Sally Clement at CC&R not only hung my kitchen wallpaper upside down but her work was also very sloppy, seams do not line up and cuts were made where they shouldn’t have been made. Paste was left on the tool while she was straightening the paper on the wall leaving permanent white marks in the paper. I’m asking to be reimbursed $200 for the cost of the wall paper and $100 for the labor involved in removing it for a total of $300. 15. Credible testimony and evidence, presented at hearing, established that the Respondent inadvertently caused damage to the Complainant’s drywall and that the wall paper was hung upside down and that the seams in the wall paper do not line up properly. 16. Credible testimony and evidence established that the Respondent’s workmanship in the installation of the wall paper in the Complainant’s kitchen area fails to comply with applicable workmanship and industry standards. 17. Credible testimony and evidence established that the Respondent departed from or disregarded the specifications for the installation of the wall paper in the Complainant’s kitchen area. 18. Credible testimony and evidence established that the Respondent’s poor workmanship damaged the Complainant’s wall paper and that the wall paper now requires removal. 19. Credible testimony and evidence established that the Complainant paid $196.35 for the damaged wall paper. 20. The Complainant submitted bids from unlicensed persons ranging from $150.00 to $400.00 for the removal of the damaged wall paper. 21. The Complainant’s claim for $100.00 as payment for her time to remove the damaged wall paper is found to be beyond mere restitution and to constitute a claim for damages. 22. The Complainant’s claim for monetary damages can be resolved in a civil court of competent jurisdiction. 23. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors and the suspended status of Respondent’s License. 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) (2) (Departure from or disregard of plans or specifications) and A.R.S. § 32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. A.R.S. § 32-1156.01. Restitution provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 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 shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the total sum of $196.35 to the Complainant as restitution for the damaged wall paper. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License revocation 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, December 30, 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