ALJDEC decisions subject to certification as final REVISED 7/16

2010A-857625-ROC · Registrar of Contractors · 2010-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 30, 2010 APPEARANCES: Yakoo Khibeir appeared via videoconferencing. Abdalla Ali Abualbasal appeared telephonically. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Abdalla Ali Abualbasal, also known as Al Basal, doing business as Unlimited Excavating (“Respondent”), is the holder of License No. 176274, a Class C-2 residential Excavating, Grading & Oil Surfacing contracting license issued by the Registrar of Contractors (“Registrar”). 2. Builders Unlimited, L.L.C. (“Builders”) is the holder of License No. 243457, a Class A- commercial General Engineering contracting license issued by the Registrar. Al Basal is Builders’ sole member and qualifying party. 3. Yakoo Khibeir (“Complainant”) entered into a written contract dated July 10, 2008, purportedly with Builders. The contract contained Builders’ letterhead, which listed License Nos. 243457 and 176274. 4. Al Basal executed the written contract as Builders’ owner. 5. The written contract contained the following terms: A- Builders Unlimited, llc [sic], agrees to provide at the above job site all materials, labors/subcontractors, Equipments [sic], license & insurance needed to build and construct the above single family home per plan, work to include: 1. Full size basement per plan, Earthwork, Concrete driveway, Grading & Drainage 2. Foundation & Flat Concrete 3. Masonry, Retaining Walls, & Plumbing 4. Floors, Framing, Windows, Doors, Wood Decking, Structural Woodwork, & Architectural woodwork. 5. Roofing, Insulation, & Siding 6. Electrical, Heating & Air Conditioning. 7. Paint & Coating 8. All work to meet or exceed the State of Arizona Building Codes & Standards. 9. Total price to include all taxes. 10. Payment method – Progress Payments with twenty percent down payment with ten percent retainer by owner. 11. The quality of all construction and material to meet or exceed AZ, County, National Building codes and standards and common to the industry. 12. Work to be completed in approximately,[sic] ten working months, exclude weekends, holidays, weather and act of nature,[sic] that may compromise the quality of work and safety, completion time for reference only no penalty will be imposed by contractor or owner.

6. The total contract price under the written contract was $320,000.00. 7. On November 18, 2009, Complainant filed a written Complaint with the Registrar alleging deficient workmanship on the subject project by Mr. Basal, who was personally named in the Complaint. The Complaint lists Builders’ commercial License No. 243457. 8. The Registrar designated the Complaint as Case No. P10-0085. The Registrar later re-designated the Complaint as Case No. 2010-857625. 9. The Registrar listed Respondent’s License No. 176274 as the contractor in Case P10-0085 (2010-857625) because it was listed on Complainant’s contract, the subject project required a residential license, and Builders did not possess a residential contractor’s license. 10. In response to the filed Complaint, the Registrar’s assigned inspector, Tom Sandoval, performed a jobsite inspection at Complainant’s residence in Overgaard, Arizona. As a result of that inspection, Inspector Sandoval issued a Corrective Work Order to Respondent, which addressed the Complaint items as follows: License #176274 issued to Unlimited Excavating has expired on 7- 1-09 [sic] and cannot do nor subcontract the recommended corrective work. The only available remedy under this license status, if appropriate, would be financial settlement. 1. Bathroom tile on the second floor has not been grouted properly. The tile in the opinion of this inspector needs to be the same at the edge. Contractor to correct by appropriate means.

2. Concrete steps in the entrance of the house are not built properly, and have cracks on the sides. The steps were poured and had multiple voids at the risers. Contractor to correct by appropriate means.

3. Mirrors are missing in the bathrooms. The Contractor agreed that the mirrors had not been installed. Contractor to finish by appropriate means.

4. The bedroom and the garage that meet with the retaining wall have had water and mud seepage throughout the whole garage and bedroom. The Contractor contracted to build a home and not to do extra excavating along the upper area of the hill in the opinion of this inspector. The homeowner will have to have engineering and excavating done and then the Contractor will have to add the proper drainage to the back of the home. No action required at this time.

5. Basement has also had water and mud seepage, causing the damage of the rug as well as dirtiness in the bathroom of the basement. This had already been cleaned up. No action required.

6. Grading has not been done properly around the house, possible [sic] causing the seepage or even from the foundation. This is also with number 4 when the engineering is done the Contractor will have to provide drainage away from the home per code. Contractor to correct by appropriate means.

(Emphasis in the original).

11. On March 5, 2010, the Registrar issued a Citation and Complaint in Case No. P10-0085 (2010-857625) charging Mr. Basal’s License No. 176274 with violating the provisions of A.R.S. § 32-1154(A) (1), (17), (18), (23), and (3), namely A.A.C. R4-9-108. 12. On March 19, 2010, Mr. Basal filed the following Written Answer to the Citation and Complaint issued in Case No. P10-0085 (2010-857625): A meeting took place right after I received the ROC. [sic] Corrective order [sic] at Mc Donald’s restaurant, located at the north west corner of Bell rd [sic] & 7th st [sic] in PHX, the meeting included myself, Mr. Yakoo & his son, at the end of the meeting we had a verbal agreement that, [sic] Mr. Yakoo to get two estimates from local contractors to correct items & to deduct it from the balance of, [sic] two thousand four hundred dollars he still owes me.

I contacted by phone Mr. Yakoo at least twice later on that week, he told he [sic] is out of town for a few days & he will call me as soon he [sic] is back in phoenix [sic], next thing I know that Mr. Yakoo filed for a hearing. I am sorry he feels that way. Thanks.

13. The Registrar forwarded the subject Complaint to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 14. On June 10, 2010, Respondent filed the following correspondence with the Office of Administrative Hearings: This letter to [sic] confirm that that [sic] Unlimited Excavating’s records, [sic] shows no contract or work history with Mr. Yakoo Khibeir & the above complaint was misfiled by Mr. Yakoo. Therefore [sic] Unlimited Excavating withdraws the written answer submitted to the ROC. Furthermore we ask that all complaints against Unlimited Excavating by Mr. Yakoo to [sic] be dismissed, thanks.

15. There is credible evidence that Mr. Basal entered into the contract with Complainant using his residential License No. 176274, a Class C-2 contracting license. That residential contracting license was listed on the parties’ written contract, albeit together with Builders’ commercial contracting license number. 16. The scope of work performed under the parties’ contract required a residential contracting license, not a commercial license. 17. Until Respondent’s June 10, 2010 filing, Respondent never denied being the responsible contractor for the subject project. Respondent’s denial of any responsibility in this matter is not credible or justified by the evidence of record. 18. The work performed on the subject project exceeded the scope of Respondent’s Class C-2 contracting license. 19. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 176274 expired on July 1, 2009. Therefore, Respondent entered into the parties’ contract while his residential contracting license was expired. 20. At the hearing, Inspector Sandoval testified that he performed a prehearing jobsite inspection on June 29, 2010. Inspector Sandoval determined that Corrective Work Order items numbered 1, 2, 3, and 6 have not been remediated. Respondent failed to comply with the Corrective Work Order requirement that Respondent reach a financial settlement with Complainant for those items. 21. Complainant contends that the issue of water infiltration and resulting damages should have been required to be repaired. However, Inspector Sandoval’s opinion in the Corrective Work Order on that issue is supported by credible evidence of record. 22. Respondent is found to have abandoned his contractual obligation to Complainant. The evidence of record supports this finding. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the cancellation of Respondent’s residential contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and/or regulatory violations in this matter. 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (17), (18), (23), and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 176274 shall be revoked on the effective date of the Order entered in Case No. 2010-857625. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure of Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2010-857625 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided license revocation and civil penalty, Respondent shall pay the additional sum of $1,000.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure of Respondent to pay the entire amount of the aforesaid additional civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2010-857625 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, July 16, 2010.

/s/ Brian Brendan Tully 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