ALJDEC decisions subject to certification as final

2010A-308475532-ROC · Registrar of Contractors · 2011-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011, at 8:15 a.m. APPEARANCES: Complainant Synergy, L.L.C. appeared telephonically through its managing member, John Whitaker; Respondent Mr. Foam, L.L.C. appeared telephonically through Roy Wells, its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In January 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC162010, Class K-42 for dual roofing to Mr. Foam, L.L.C. (“Respondent”). Roy Wells is Respondent’s managing member and qualifying party. Synergy, L.L.C. (“Complainant”) owns a commercial building located at 4228 East 32nd Street, Yuma, Arizona 85365 (“the building”). John Whitaker is Complainant’s managing member. On August 30, 2010, the Registrar received Complainant’s complaint against Respondent, requesting return of the $4,000.00 deposit that Complainant had paid for Respondent to apply foam to the building’s roof under the parties’ contract because Respondent had failed to timely complete the job. On October 14, 2010, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(1). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that the deposit was nonrefundable and that after bad weather delayed Respondent’s performance of the contract, Complainant cancelled the contract and used its own employees to apply foam to the roof of the building. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A telephonic hearing was held on April 6, 2011. Complainant submitted two exhibits and presented the testimony of two witnesses: (1) Mr. Whitaker; and (2) Ed Thomas, Complainant’s maintenance man who finished the job on the roof of the building. Respondent submitted three exhibits and presented the testimony of two witnesses: (1) Mr. Wells; and (2) Elmer Kollecker, Respondent’s sales representative. Hearing Evidence On or about August 24, 2010, Mr. Whitaker, on behalf of Complainant, accepted Respondent’s proposal to apply foam over the roof of the building for a total contract price of $16,000.00, and paid Respondent a $4,000.00 deposit to begin the job. The proposal and resulting contract provided that “ALL DEPOSITS ARE NON-REFUNDABLE.” (Emphasis in original.) Mr. Wells testified that he informed Mr. Whitaker that Respondent had one foam roof job ahead of Complainant’s, and that bad weather prevented Respondent from applying any foam to any roof during most of the week after August 24, 2010. Mr. Whitaker testified that the roof over the building had begun to leak due to the weather and that he “didn’t care for” Respondent’s excuses for not starting the work. Mr. Whitaker testified that because the building is at least 400 feet away from any other structure, he did not feel that the high winds and rain should have prevented Respondent from cleaning the roof or from blowing foam. Mr. Wells testified that the building was only 100 feet away from a busy highway and that if Respondent had blown foam on a windy day, it would have risked damaging the cars on the highway. On Saturday, August 28, 2010, Respondent’s crew pressure-washed the roof of the building. Mr. Whitaker testified that after Respondent’s crew left, Mr. Thomas and Complainant’s maintenance crew removed at least 200 pounds of old foam and other debris from the roof of the building. Mr. Wells testified that Respondent’s crew was not finished cleaning the roof. Mr. Whitaker testified that he felt that Respondent was not committed to completing Complainant’s job in a timely manner after Mr. Wells told him that Respondent placed a tarp over the Post Office, because Respondent did not place a tarp over Complainant’s building. Mr. Wells testified that unlike Complainant’s building, the Post Office did not have any roof. On Monday, August 30, 2010, Mr. Whitaker informed Mr. Wells that because Complainant was “cutting its losses,” Respondent should not return to complete the roof at the building and that Complainant would file a complaint to the Registrar to recover the $4,000.00 deposit. Mr. Thomas and Complainant’s maintenance crew subsequently completed applying foam to the roof of the building. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden 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] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license. The legislature has not empowered the Registrar to adjudicate or award money damages.[6] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work.[7] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[8] That is not the case here. The roof was correctible, and in fact has been fully repaired and completed. The parties’ contract did not contain a completion date and six days is not an excessive amount of time to allow a contractor to begin a roof repair, especially in poor weather conditions. As a licensed contractor, Respondent is presumed to have the expertise to complete construction projects in a professional, workmanlike, and timely manner. Complainant has not established that it was justified in cancelling the contract and refusing to allow Respondent access or opportunity to complete the work that it contracted to perform. Complainant therefore has not borne its burden to establish that Respondent violated A.R.S. § 32-1154(A)(1)[9] by failing to perform the work that the parties’ contract contemplated. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss Case No. 2010-[number redacted] against Respondent Mr. Foam, L.L.C.’s License No. ROC162010, Class K-42. 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, April 19, 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] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [7] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [8] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater after the contractor had made numerous attempts to repair the heater, but could not make it provide a habitable degree of heat. See id. [9] 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.”

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