ALJDEC decisions subject to certification as final

2010A-308475334-ROC · Registrar of Contractors · 2011-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2011, at 8:00 a.m. APPEARANCES: Lasting Impressions Construction, L.L.C. appeared through Jeff Stawski, its qualifying party and managing member; Mountain View Masonry, L.L.C. appeared through Tim Welch, its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In May 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC184834, Class B-3 for residential general remodeling and repair contracting to Lasting Impressions Construction, L.L.C. (“Lasting Impressions”). In April 2007, the Registrar issued License No. ROC231292, Class K-31 for dual masonry to Mountain View Masonry, L.L.C. (“Mountain View”). On July 8, 2010, the Registrar received a complaint from Lasting Impressions against Mountain View concerning its work on a garage addition at 37487 North 102nd Street, Scottsdale, Arizona (“the Meyer job”). Lasting Impressions’ complaint alleged that after it paid Mountain View part of the contract price, Mountain View abandoned the job. Lasting Impressions requested that the Registrar require Mountain View to pay Lasting Impressions $5,093.00, representing its cost to complete the job and to repair Mountain View’s poor workmanship. The Registrar designated Lasting Impressions’ complaint against Mountain View as Case No. 2010- [number redacted]. On August 23, 2010, the Registrar received a complaint from Mountain View against Lasting Impressions, alleging that Lasting Impressions owed Mountain View $1,699.00 for the Meyer job. Mountain View also alleged that Lasting Impressions failed to place its license number on its letterhead, performed electrical and plumbing work on the Meyer job, “never furnished me with a written contract as requested,” and “[h]ired outside help to complete the project without written notice.” The Registrar designated Mountain View’s complaint against Lasting Impressions as Case No. 2010- [number redacted]. Lasting Impressions and Mountain View both subsequently requested hearings on their respective complaints against the other. On October 18, 2010, the Registrar issued a Citation and Complaint against Mountain View in Case No. 2010-[number redacted], charging violations of A.R.S. § 32-1154(A)(1), (3) (namely A.A.C. R4-9-108), (13) (namely A.R.S. §§ 32- 1124(B) and 32-1158), and (17). On October 19, 2010, the Registrar issued a Citation and Complaint against Lasting Impressions in Case No. 2010-[number redacted], charging violations of A.R.S. § 32-1154(A)(11), (13) (namely A.R.S. §§ 32-1124(B) and 32-1158), and (17). Mountain View and Lasting Impressions both filed timely written answers to the Registrar’s Citations and Complaints in Case Nos. 2010-[number redacted] and 2010-[number redacted], respectively, denying any statutory violations. The Registrar consolidated Case Nos. 2010-[number redacted] and 2010-[number redacted] and referred them to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. A consolidated hearing was held on February 25, 2011. Lasting Impressions presented the testimony of Jeff Stawski, its qualifying party and managing member, and submitted ten exhibits, including one exhibit that consisted of numerous photographs. Mountain View presented the testimony of Tim Welch, its qualifying party and managing member, and submitted three exhibits, including one exhibit that consisted of numerous photographs. Hearing Evidence On or about March 1, 2010, Mountain View submitted a proposal to Lasting Impressions for certain work at the Meyer job, in relevant part as follows: PROPOSAL

Labor, materials, excavation, and equipment to furnish and install concrete footings, stem walls, anchor bolts, damp proofing and floor as per plans by Tyler Green dated 2.15.10

Scope of Work

► Install 80 l/f of reinforced concrete footings 8” x 16” w/ verts 4’ O.C. $1,280.00 ► Install 80 l/f of masonry/concrete stem 2’ tall w/ 6” wide blocks $1,080.00 ► Install a 4” thick concrete floor 23’ x 23’ as per plan $1,751.00 ► Provide excavation of footings, back fill garage, compact, and rough grade $ 640.00

► Added cost to provide 3’ wide footing for 35 l/f in lieu of 16” wide $ 735.00 ► Added cost to provide 8” wide stem for 35 l/f 4’8” tall in lieu of 6” x 2’ tall $ 864.00

Mountain View’s March 1, 2010 proposal did not show its license number preceded by the acronym “ROC.” Lasting Impressions accepted Mountain View’s March 1, 2010 proposal, and Mountain View started masonry work on the garage addition at the Meyer job. After Mountain View constructed the footings for the garage addition, Lasting Impressions changed the job specifications to require poured-in- place concrete stem walls to match the house, instead of the block stem walls that Mountain View’s March 1, 2010 proposal described. No written change order memorialized this change. Because Mountain View’s expertise was in block stem walls, rather than poured-in-place concrete stem walls, it subcontracted the stem walls on the Meyer job to Bloomer Construction, Inc., License No. ROC115848, Class B (“Bloomer”). Mr. Welch testified that the last two entries under the scope of work on Mountain View’s March 31, 2010 proposal provided for additional costs if the lot was not level and footings and stem walls could not be constructed as described on the first and second entries. Mr. Welch testified that the portion of the lot where Mountain View started construction of the garage was not level, and that Mountain View or its subcontractor was required to perform the extra work described in the last two entries under the scope of work to construct the footings and stem walls. Mr. Welch testified that Mountain View completed the footings, stem walls, and backfill described on the March 1, 2010 proposal. On or about April 16, 2010, Lasting Impressions paid Mountain View $3,500.00 for its work on the Meyer job. Mr. Welch testified that Mountain View was asked to delay pouring the concrete slab described on the third entry of the March 1, 2010 proposal to allow access to the framers on the Meyer job. Mr. Welch testified that subsequently, he visited the Meyer jobsite once, and that scaffolding blocked Mountain View’s access to pour the slab. Although Mr. Stawski agreed that he asked Mountain View to leave the Meyer job to allow access to the framers, he testified that Mr. Welch never called him back to schedule Mountain View’s completion of the project. Mr. Welch testified that Mr. Stawski never called to ask Mountain View to complete the project, and submitted Mountain View’s phone bills, showing numerous calls to Lasting Impressions’ telephone number. Mr. Welch testified that the total of the amounts set forth on Mountain View’s March 1, 2010 proposal for the work that Mountain View performed, less Lasting Impressions’ $3,500.00 payment, was $1,699.00, the amount that Mountain View requested in its complaint to the Registrar against Lasting Impressions. Mr. Stawski testified that Mountain View had not completed the backfill on the garage addition at the Meyer job. Mr. Stawski also testified that the finish on the poured-in-place concrete stem walls was poor and required correction. Lasting Impressions submitted a bid from Avanti Enterprise, L.L.C., License No. ROC237212, Class K-31 (“Avanti”), to repair the poured-in-place concrete stem walls, backfill, and pour the slab at the Meyer job, in the total amount of $5,864.00. Mr. Stawski testified that because there was “not enough in the job” to hire Avanti, Lasting Impressions repaired and completed the stem walls and slab on the garage addition. On June 5, 2010, Lasting Impressions issued an invoice to Mountain View for the claimed value of Lasting Impression’s work, on a time-and-materials basis, in the amount of $5,093.00. Lasting Impressions’ invoice did not show its license number preceded by the acronym “ROC.” According to the Registrar’s record, Lasting Impressions’ and Mountain View’s licenses are both current and in good standing. Their complaints against each other are the only complaints pending against either party’s license. CONCLUSIONS OF LAW These matters lie within the Registrar’s jurisdiction.[1] Each party bears the burden of proof to establish their opponent’s statutory violations by a preponderance of the evidence,[2] and to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Because no contract with the homeowner was submitted, neither party established that its opponent violated A.R.S. § 32-1154(A)(13) (namely A.R.S. § 32-1158).[5] Mountain View’s monetary claim against Lasting Impressions in Case No. 2010- [number redacted] is based on a good-faith dispute that Mountain View’s evidence at the hearing did not resolve. Therefore, Mountain View did not establish that Lasting Impressions violated A.R.S. § 32-1154(A)(11).[6] Lasting Impressions did not establish that Mountain View violated A.R.S. § 32-1154(A)(1),[7] (3) (namely A.A.C. R4-9-108),[8] or (17).[9] Mountain View did not establish that Lasting Impressions violated A.R.S. § 32-1154(A)(17). Lasting Impressions established that Mountain View violated A.R.S. § 32- 1154(A)(13) (namely A.R.S. § 32-1124(B))[10] because it failed to include its license number preceded by the acronym “ROC” on its March 1, 2010 proposal. Mountain View established that Lasting Impressions violated A.R.S. § 32- 1154(A)(13) (namely A.R.S. § 32-1124(B)) because it failed to include its license number preceded by the acronym “ROC” on its June 5, 2010 invoice. RECOMMENDED ORDER Case No. 2010-[number redacted] Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in Case No. 2010-[number redacted], the Registrar suspend Mountain View Masonry, L.L.C.’s License No. ROC231292, Class K-31 until Mountain View amends the documents used in its contracting business to include its license number preceded by the acronym “ROC.” It is further recommended that the Registrar not suspend Mountain View’s license and, instead, close Case No. 2010-[number redacted] if on or before the effective date of the Registrar’s final order, Mountain View provides written proof that is satisfactory to the Registrar that it has revised its proposal form, invoice form, business cards, advertising, and any other documents used in its contracting business to show its license number preceded by the acronym “ROC.” Case No. 2010-[number redacted] Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in Case No. 2010-[number redacted], the Registrar suspend Lasting Impressions Construction, L.L.C.’s License No. ROC184834, Class B-3 until Lasting Impressions amends the documents used in its contracting business to include its license number preceded by the acronym “ROC.” It is further recommended that the Registrar not suspend Lasting Impressions’ license and, instead, close Case No. 2010-[number redacted] if on or before the effective date of the Registrar’s final order, Lasting Impressions provides written proof that is satisfactory to the Registrar that it has revised its proposal form, invoice form, business cards, advertising, and any other documents used in its contracting business to show its license number preceded by the acronym “ROC.” 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, March 10, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” The specific statute charged, A.R.S. § 32-1158(B), provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007, must be in writing and include certain minimum terms. [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] This statutory subsection includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” The specific statute charged was A.R.S. § 32-1124(B), which requires that licensed contractors include their license number, which “shall be preceded by the acronym ‘ROC,’” on “all written bids submitted by the lic()1237b—´µ¶½ÉÊç ? @ F \ ] e f g i ª « Í Õ Ü Ý þ ÿ ãäåýþV f g

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