ALJDEC decisions subject to certification as final

2010A-9864164-ROC · Registrar of Contractors · 2011-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2011

APPEARANCES: Complainant appeared by telephone on her own behalf; Respondent was represented by President and Qualifying Party Ray Drozanowski.

WITNESSES: Beau Cruz, ROC Inspector Peggy Wilson Dobbs Ray Drozanowski

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The Citation and Complaint issued by the Registrar of Contractors in this matter also alleges that Respondent abandoned the project, did not follow plans, specifications, or building codes, and performed work while its license was suspended or on inactive status. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony from the witnesses above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation because Respondent performed work while on a suspended license. This tribunal recommends that Respondent return the money gained from the project or have its license revoked. FINDINGS OF FACT 1. Respondent was the holder of license B-3.210242-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorized Respondent to perform general remodeling and repair of residential properties. Ray Drozanowski is the company’s corporate President and Qualifying Party. The license was automatically suspended by law on June 29, 2009, for lack of bond. It was again suspended by law on September 1, 2009 for failure to renew. On September 1, 2010, the license expired and has remained in that status. 2. In August 2009, Respondent submitted a bid to Complainant to repair water-damaged portions of the master bathroom in Complainant’s home. On August 4, 2009, Complainant accepted the bid and signed it, creating a contract. The contract specifically notes that it was based on an insurance company’s estimate. Respondent proceeded to perform the work. 3. As noted, Respondent’s license was on suspension at the time of the contract and while the work was performed. 4. Complainant learned of the suspension and informed Ray Drozanowski of it sometime before August 17, 2009. Respondent then informed Complainant that it could not finish the project and must cease work. Respondent proposed in writing that they “void/abandon” the contract, that Respondent bill Complainant for the work completed, and that any “unused monies” paid by Complainant be refunded. Complainant agreed to this and signed the written proposal on August 17, 2009. 5. A document attached to Respondent’s formal Answer lists approximate costs of the completed work in a total amount of $2,860.00. There is also a cancelled check from Complainant to Respondent for $2,000.00. 6. ROC Inspector Beau Cruz inspected the jobsite and issued a Corrective Work Order (“CWO”) in September 2009. That CWO found that the project was incomplete and that some of the work already performed did not meet workmanship standards. The CWO noted that Respondent could not do any work until the license suspension was lifted and, by implication, ordered Respondent to lift the suspension, correct the deficiencies, and complete the project. 7. Respondent did not have the suspension lifted.[1] 8. The evidence shows that Drozanowski and another individual worked on completing the project for another few weeks until Drozanowski concluded that he was not going to get paid any more by Complainant. Drozanowski testified that he believed that he could do the work under the “handyman” exemption from ROC licensure, even though Respondent’s license was suspended. 9. At hearing, much of the testimony and evidence concerned issues about whether Respondent received notices from the ROC, particularly the CWO. The ROC has already found that an incorrect address was on file for Respondent, due to no fault of Respondent’s, from December 2007 to July 2010.[2] Thus, Respondent did not receive notice of the complaint, the inspection, or the CWO. 10. The evidence shows that Respondent contracted for and performed work as a contractor while its license was suspended. 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, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9- 108.[6] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 prohibiting poor workmanship. A.R.S. § 32-1155(C) precludes the ROC from citing licensees with workmanship violations when the licensee has not had an opportunity to inspect the work. Respondent did not have that chance here. In addition, Respondent did not have a chance to comply with the CWO due to the address error. Therefore, violations of (A)(3) and (A)(23) cannot be found on this record. 3. However, a violation of A.R.S. § 32-1154(A)(18) (prohibiting contracting while on a suspended license) is clearly supported by the record. Respondent earned $2,000.00 by entering into the contract with Complainant while the license was suspended. Respondent should not be allowed to keep the ill-gotten gains of that transaction. It does not matter that Complainant agreed to “void/abandon” the contract. Respondent should not have put Complainant in that position in the first place. 4. This tribunal finds that Respondent has violated subsection (A)(18) and thereby gained $2,000.00 from Complainant. 5. Respondent should be required to return the $2,000.00 to Complainant or face a revocation of its license. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.210242-R, held by RJR Build, Inc., be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that Respondent has paid Complainant $2,000.00 and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-9864164 (formerly 10-0986) shall be closed.

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, September 9, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This would have required Respondent to renew its bond and renew its license. [2] See Order Quashing Citation and Complaint and Default Decision and Order issued March 24, 2011. [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). [6] There are also other citations that were not addressed by the evidence presented at hearing.

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