ALJDEC decisions subject to certification as final

2010A-308476687-ROC · Registrar of Contractors · 2011-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 9, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent appeared and was represented by attorney David Gordon.

WITNESSES: Cliff Frandsen, ROC Inspector Daryl Lassen Lynn Lassen Brandon Ray, Respondent’s employee Scott Simpson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action complaining about Respondent’s work building a free-standing garage/game room on Complainant’s property. The Citation and Complaint alleges abandonment of the contract; failure to build according to plans, specifications, or code; poor workmanship; and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits C-1 through C-83 from Complainant[1] and Exhibits R-1 through R-16 from Respondent, as well as testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license B.104007-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Respondent is a sole proprietor. 2. In November 2009, Complainant was acting as an owner/builder to build a free-standing garage/game room on his property in Yavapai County. Complainant hired Respondent to design and create plans for the building to submit to county authorities for approval. Respondent did the design work, plans were approved, and Complainant paid Respondent for that design work. 3. In addition, Respondent also entered into a “Construction Subcontract” agreement with Complainant to perform construction work as described and directed by Complainant, to be paid on a time-and-materials- plus-30% basis.[2] In other words, Respondent was to be paid for work that would be requested by Complainant as the garage building was built. Others were also working for Complainant to build the garage.[3] The evidence shows that Respondent performed grading, concrete, framing, and drywall work on the project. 4. Respondent’s Exhibit R-9 shows that Respondent billed Complainant by invoice noting the dates worked, number of hours worked, and materials used in performing work during the different phases of the project. Complainant paid all invoices presented to him by Respondent. 5. During the drywall stage of the project, Complainant began to express dissatisfaction with Respondent’s time and recordkeeping and Complainant became concerned about the cost of Respondent’s work. Respondent also became concerned about Complainant’s ability to pay for future work.[4] Throughout August and to mid-September 2010, the parties discussed the job and their contractual relationship through e-mail.[5] In mid-September 2010, Respondent referenced “personal attacks” by Complainant against him.[6] Complainant accused Respondent of refusing to communicate and of having abandoned the project, improperly characterizing Respondent as the general contractor on the project.[7] Complainant also complained that Respondent’s drywall work was “not done correctly” and was “not finished.”[8] The contractual relationship never recovered after that point and Respondent did no further work for Complainant. 6. On October 17, 2010, Complainant filed this ROC complaint against Respondent. ROC Inspector Cliff Frandsen inspected the jobsite in November 2010 and again on June 6, 2011. He testified at the hearing that he found no workmanship issues at either inspection. However, he issued a Corrective Work Order (“CWO”) in December 2010 that found no defective workmanship but directed Respondent to make sure that his work complied with building codes and industry standards. The CWO also directed Respondent to provide an accurate accounting to Complainant. Essentially, the CWO required Respondent to comply with his contractual duties under the contract he had with Complainant. 7. The evidence shows that the building passed final inspection by Yavapai County on October 13, 2010.[9] 8. At hearing, Complainant presented numerous complaints about Respondent. Some of the complaints concerned Complainant’s regret about certain terms of the contract, Respondent’s alleged poor work habits, and Respondent’s accounting of his time. Other complaints concerned workmanship with regard to framing, drywall, the height of the garage door opening, and the lack of cleanup. 9. Complainant presented no evidence, in the form of either a written statement or testimony from someone knowledgeable and credible about workmanship standards in Arizona, showing what the workmanship standards are for the alleged deficiencies and concluding that Respondent had not met them. The only reliable evidence about workmanship came from Inspector Frandsen who stated that there were no workmanship problems. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[10] Further, the standard of proof at hearing is by preponderance of the evidence.[11] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[12] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1)(prohibits abandonment of a contract without legal excuse), (A(2)(requires building in accordance with plans, specifications, and building codes), (A)(3) by way of ROC Rule R4-9-108 (requires that work meet minimum workmanship and industry standards), and (A)(23)(requires that licensees comply with CWOs). Respondent has not violated those provisions. 3. Complainant’s complaint is, at its heart, an abandonment claim. His complaints about the terms of the contract, the amount of hours per week that Respondent worked, and Respondent’s accounting are contractual issues. Those matters are governed by the terms of the contract, which in this case were minimal and broadly stated. The “Subcontract” did not state how many hours Respondent was required to work per week or what documents were required for Respondent’s accounting. Those terms could have been written into the contract had Complainant felt they were important. Furthermore, the contractual duties imposed on Respondent were so broad and vague it cannot be said that Respondent abandoned the contract. Indeed, it is not even clear that Respondent had a contractual duty to remain working on the project to its completion under the vague terms of the contract. 4. At best, Complainant has shown only a good faith contractual dispute between the parties. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate such disputes in the face of a good faith position held by Respondent that he has not breached the contract. The evidence supports such a good faith belief by Respondent. Until and unless any claimed breach is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the abandonment provision can be supported. 5. Concerning the allegation of failure to follow plans and specifications, the evidence does not show such a violation.[13] 6. The evidence also does not show that Respondent failed to comply with the CWO. To the extent it is an enforceable order, the CWO merely required Respondent to comply with the contract he had with Complainant. As noted, it has not been shown that Respondent breached that contract. 7. Finally, no violation of workmanship standards was shown because Complainant did not rebut Inspector Frandsen’s testimony that there were no workmanship problems when he inspected the site. Complainant did not present any other reliable and credible evidence of work that fell below applicable workmanship standards. 8. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Scott Andrew Simpson dba Design Construction and Consulting 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, June 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Excluding C-3, C-6, C-7, C-14, C-49, C-69, C-72, C-73, C-74, C-78, C- 79, and C-83. These exhibits were not admitted for various reasons reflected on the record. Some of those numbers were not used by Complainant to mark Exhibits, but were skipped over for reasons not stated. [2] The body of the contract states only the following: “Services: Time ($35.00/hr.) & Materials +30%, for construction of garage per plans dated 1- 9-10 at above location; based on work, services & materials described by the owner.” [3] Contrary to Complainant’s assumption, evident during the hearing, Respondent was not hired as the general contractor on the project. [4] Exhibits R-10 and R-11. [5] Exhibits C-38 through C-45. [6] Exhibit R-11. [7] Exhibit C-45. [8] Id. [9] This is shown on a copy of the county inspection card attached to Respondent’s Written Answer to the Citation and Complaint. It is also acknowledged by Complainant on the complaint form in section 3, the box for “Completion Date.” [10] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [11] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [12] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [13] Contrary to Complainant’s assertions, his drawing does not clearly show an 8’ opening to the garage. Exhibit R-1.

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