ALJDEC decisions subject to certification as final

2011A-1677-ROC · Registrar of Contractors · 2012-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2012

APPEARANCES: Complainant appeared on her own behalf; no one appeared on behalf of Respondent.[1]

WITNESSES: Cheryl Craig

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming abandonment and poor workmanship regarding work Respondent did at Complainant’s home. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits A through H. Complainant presented evidence and testified. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding abandonment and other violations and recommending revocation of the license. FINDINGS OF FACT 1. Respondent was the holder of license B-3.110899-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, except for specialty trades, such as electrical and plumbing. Jack Northroup was the company’s Qualifying Party. The license was revoked in January 2011. 2. In April 2008, Complainant experienced a major flooding event at her home while she was away. This required a substantial repair of her home, and she decided to make some improvements as well. She first hired Respondent to do demolition work, and that experience went well. 3. In January 2009, she entered into a second contract with Respondent to do remodeling work for $75,895.00. The agreement called for a deposit and progress payments at specified stages of the job. The job started well but got progressively worse as time went on. Complainant became less and less happy with Respondent’s work and began to distrust Respondent. Complainant began having concerns about the quality of the materials Respondent was using and the quality of the work. 4. Complainant initially paid $22,000.00 in January 2009[2] and then $23,500.00 in February 2009.[3] She discovered in March 2009 that some of the work Respondent was doing (installation of new water heater, electric fireplace, Jacuzzi tub) required a licensed electrician and a building permit. Respondent had not hired an electrician, nor had Respondent obtained a permit. When Complainant called Respondent’s attention to those problems, Respondent denied that an electrician or a permit was necessary. Not until Complainant contacted the local building authority, who then contacted Respondent, did Respondent hire an electrician and obtain a building permit. By then, Respondent had done a substantial amount of the electrical work without an electrician. 5. Respondent was not happy with Complainant after that point. In April 2009, Respondent left the job and did not return. 6. The evidence shows that Complainant paid Respondent a total of $45,500.00 and had a remaining balance due of $30,395.00. She has submitted bids showing what it will cost her to finish the job. Those bids show the following costs for completing the work: Olson Electric[4] $6,720.00 Arizona Fireplaces (fireplace only; no installation)[5] $1,135.00 Ferguson Enterprises (whirlpool tub; no installation)[6] $1,886.82

Exhibits D, E, and F are bids totalling over $30,000.00 for various cabinetry and countertops from “Downsview Designs” in Scottsdale, Arizona. Based on the ROC website, Downsview Designs is not licensed in Arizona. Supplying the material for cabinets and countertops does not require a contractor’s license,[7] but the proposals in Exhibits D, E, and F include “supply and installation” of the materials. Installation requires a license, which it appears Downsview Designs does not have.[8] Therefore, those bids cannot be used as a basis for computing Complainant’s damages and are, therefore, excluded from the list above. 7. Complainant’s evidence is uncontested. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[9] Further, the standard of proof at hearing is by preponderance of the evidence.[10] 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.[11] Complainants have met that burden. 2. The evidence shows abandonment, poor workmanship by Respondent, failure to obtain a permit, and operating outside the scope of its license by performing electrical work. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(1), (A)(2), (A)(3) by way of ROC Rule R4-9-108, and (A)(17), as alleged in the Citation and Complaint. 3. A review of current ROC records shows that Respondent’s license was revoked in January 2011. Pursuant to A.R.S. § 32-1154(C), revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license in this matter. 4. Respondent’s license should be revoked in this matter. Complainant may then make a claim to the Fund for her actual damages, based on bids from licensed contractors. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.110899-R, held by Northroup Building Company, LLC, be revoked.

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, March 2, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Jack Northroup sent a letter to the ROC on January 23, 2012, stating that the business was dissolved and would not “respond” to the hearing. [2] Exhibit A. [3] Exhibit B. [4] Exhibit C. [5] Exhibit G. [6] Exhibit H. [7] A.R.S. § 32-1121(A)(4). [8] There is no indication that the installation is to be done by another company. It is recommended that the ROC investigate Downsview Designs for contracting without a license. [9] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [10] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [11] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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