ALJDEC decisions subject to certification as final

2011A-3489-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2011

APPEARANCES: Complainant appeared on his own behalf; Terryl Gibson appeared on his own behalf.

WITNESSES: Thomas Montalvo Terryl Gibson

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship, abandonment of the job, and failure to comply with a Corrective Work Order on the part of Terryl Curtis Gibson dba Gibson and Gibson Development (Gibson) . The case is based on a contract to repair damage done to Complainant’s house by a hailstorm. Gibson denies that he had a contract with Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony 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 Gibson’s residential license in violation and ordering that Gibson provide restitution or perform corrective work.

FINDINGS OF FACT 1. Gibson is the holder of license B.148753-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Gibson to operate as a general contractor for residential projects. Terryl Gibson is the sole proprietor of Gibson. 2. Gibson is also the holder of license B-2.150016-C, a general small commercial contracting license issued by the ROC. It authorizes Gibson to act as a general contractor on small commercial projects. Although the B-2 license is named in the complaint, there is no evidence that the complaint encompasses any commercial work by Gibson. Therefore, the complaint against the commercial license is dismissed below. Only the residential license is at issue here. 3. The evidence shows that after a hailstorm damaged Complainant’s home in October 2010, Complainant entered into a contract with “Global Construction, a subsidiary of Gibson and Gibson Development” who was working under Gibson’s ROC license numbers. Complainant did not deal with Gibson, but with someone else whose name Complainant does not remember. The agreement called for installation of new shingles on the roof. That work was performed to Complainant’s satisfaction, with the exception of a shingle that needs adjustment. The agreement also called for additional work, such as replacing a rooftop A/C unit, repair of a shed and a fence, as well as repainting siding on the house. Although paid for, the additional work was not performed. 4. The evidence shows that Complainant paid a total of $8,051.95. It also shows that the amount paid for the roofing work that was done was $3,334.56.[1] Therefore, the evidence shows that Complainant has paid $4,717.39 for work that has not been done. 5. After Complainant filed a compliant with the ROC in June 2011, ROC Inspector Jim Hennessy inspected the jobsite and issued a Corrective Work Order (“CWO”) ordering Gibson to finish the job by completing the areas not done and fixing the shingle. That work has not been done. 6. Terryl Gibson testified that he was hired by Don Johnson, Josh Johnson, and Eric Hoffman, who operated as unlicensed entity “Global Construction,” and then as “Professional Home Improvements” and “Wakina Contracting.” He allowed them to “use” his license, as if they had hired his license for use by their company. He testified that he was not aware of the job for Complainant until after the complaint was filed, and did not receive any of the money paid by Complainant. He understands now that he aided and abetted unlicensed contracting and should not have allowed the use of his license by another company. 7. A search of the ROC database shows that Don Johnson and Eric Hoffman obtained two licenses[2] in early 2011 as “Professional Home Improvements, Inc.” and then changed the company name to “Wakina Contracting, Inc.” The ROC should investigate whether Johnson, Hoffman, and those entities were contracting without a license prior to the issuance of their current license or were otherwise improperly using Gibson’s license. 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 Gibson has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The allegations in the Citation and Complaint are that Gibson has violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1) for abandonment of a project, (A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, and (A)(23), failing to comply with a CWO.[6] As found above, the evidence shows that Gibson violated those statutes. 3. The preponderance of evidence shows that Gibson was aware of and allowed the use of his license by “Global Construction,” an unlicensed entity. Therefore, Gibson is held responsible for the contract with Complainant. That contract has been abandoned and the work was not completed in accordance with the CWO. 4. Gibson should be allowed to complete the work or return to Complainant restitution in the amount of $4,717.39 for the work not done. If Gibson does not do so, Gibson’s license should be suspended. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that license B.148753-R, held by Terryl Curtis Gibson dba Gibson and Gibson Development, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that either (a) Gibson has paid Complainant restitution in the amount of $4,717.39 or (b) that Gibson has corrected the items listed in the CWO issued in this matter, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Gibson provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-3489 shall be closed. IT IS FURTHER RECOMMENDED that Citation and Complaint 2011-5217 against license B-2.150016-C 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, December 22, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This figure was derived using the insurance adjuster estimate for “Dwelling Roof Total” ($6,953.13) minus the last three line items in the “Dwelling Roof” section (which total $3,618.57), which related to removal and replacement of the rooftop air conditioner. [2] License numbers K-42.271049-D and KB-2.271051-D. [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 other allegations, but they have been dealt with through warning letters.

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