ALJDEC decisions subject to certification as final

2010A-308475551-ROC · Registrar of Contractors · 2011-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2011

APPEARANCES: Complainant appeared on her own behalf, accompanied by her fiancé Sean Patrick; Respondent was represented by attorney James Sparks, accompanied by Managing Member Victor Padilla.

WITNESSES: Amanda McCarthy Sean Patrick Victor Padilla Sandra Padilla

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that Respondent, without legal excuse, abandoned the project for which Respondent had been hired. Respondent denies the allegation. During the hearing, Respondent made several motions to dismiss various allegations in the Citation and Complaint. Dismissal motions were granted for allegations of violations of A.R.S. § 32-1154(A)(2)(failure to follow plans, specifications, and building codes), (A)(3)(poor workmanship), (A)(7)(fraudulent act), and (A)(17)(knowingly contracting outside the scope of the license). Dismissals of the allegations for subsections (A)(2) and (A)(3) were granted based on Complainant’s concession that she has had Respondent’s work corrected by another contractor. According to A.R.S. § 32-1155(C), a licensee cannot be cited for poor workmanship or failure to follow code when the work has been modified by another contractor. Dismissals of the allegations for subsections (A)(7) and (A)(17) were granted because Complainant failed to make prima facie cases for those allegations.[1] A dismissal motion for the remaining allegation for violation of subsection (A)(1)(abandonment of the project without legal excuse) was denied. That is the only issue addressed herein. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits C1, C3, C5 pages 1 and 2 only, and C8, as well as Respondent’s Exhibits R1, R2, R3 (except the letter from R. McDaniel), and R7. The parties presented evidence and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.223399-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction, except for specialty trades such as plumbing and electrical. Victor Padilla is the Qualifying Party. 2. In September 2009, Complainant accepted a bid from Respondent to completely remodel a bathroom at Complainant’s home for $7,300.00. The payment terms were for Complainant to pay Respondent half at the start and half upon completion. The scope of the work included removal of walls and building new walls, removal of plumbing and installing new plumbing, drywall work, and electrical work. The bid specified that plumbing fixtures (sink and tub), tile, and paint were to be supplied by Complainant. It also specified that Respondent was responsible for rough plumbing only and that the plumbing would be finished by others. Complainant and her fiancé planned to do some of the painting work themselves and to buy the fixtures themselves. 3. Complainant paid Respondent the first half of the contract amount and Respondent began work in October 2009. Respondent completed the project to a stage in which it was ready for the fixtures. By agreement of the parties, Respondent was to wait for Complainant to buy fixtures before doing more work. Complainant was to contact Respondent once Complainant had the fixtures ready for installation. Complainant did not make that contact until May 3, 2010. 4. In November 2009, Respondent contacted Complainant and requested payment of the second half of the contract price, except for $400.00. Respondent took the position that all but $400.00 of the job was complete. Complainant made the requested payment in November 2009. Complainant testified at hearing that Victor Padilla “harassed” her into making the payment by calling her repeatedly while she was at work. However, there was no testimony or other evidence that would support a claim that Complainant made the payment involuntarily. 5. When Complainant contacted Respondent on May 3, 2010, Victor Padilla immediately responded to Complainant that he was not available for three to four weeks, but if he had one or two days, he could get to Complainant’s home and he would let her know. He testified at hearing that he was in New Mexico doing a job at that time. After two weeks had gone by, Complainant contacted Respondent again. The parties then exchanged dates and times over several days but could not find a mutually convenient time. The e-mail correspondence at that time shows good faith attempts by both parties to schedule a mutually agreeable time to complete the job, yet without success.[2] 6. On June 14, 2010, Complainant, through Sean Patrick, sent an e- mail to Respondent firing Respondent from the job. The e-mail states that Respondent would not work around Complainant and her fiancé’s schedule, “harassed” Complainant for the November 2009 payment, and did not listen to Complainant. At hearing, Complainant testified that Respondent abandoned the project by failing to work out the scheduling conflict in May and June 2010, “harassing” her for payment in November 2009, by causing her to lose faith in Respondent’s ability to complete the project, and by being “pushy” and misleading her about the percentage of completion of the project in November 2009. Complainant had another company redo and finish the job. 7. The weight of the evidence does not support a finding that Respondent abandoned the contract without legal excuse. At most, it shows a contractual dispute in which Respondent has a good faith claim that it was not in breach of contract. 8. Complainant provided no evidence regarding a fraudulent act by Respondent and no direct evidence regarding whether Respondent knowingly contracted beyond the scope of its license. Complainant speculated that Respondent may have performed electrical and plumbing work on the project beyond the scope of its license, but did not have evidence to support a prima facie case of that allegation. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainants have met that burden. 2. The issue for decision in this matter is whether Respondent has violated (A.R.S.) § 32-1154(A)(1), which prohibits abandonment of a contract without legal excuse. As noted above, the evidence does not support that conclusion. 3. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Superior Custom Builders, LLC be dismissed.

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 18, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Finding of Fact 8 below. [2] Exhibits C3 and R7. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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