ALJDEC decisions subject to certification as final

2011A-5060-ROC · Registrar of Contractors · 2012-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2012

APPEARANCES: Complainant was represented by its Director of Field Operations Patrick Davis and corporate President Stephanie Davis, who both appeared by telephone; Respondent was represented by Vice President and Qualifying Party Robert Swagerty.

WITNESSES: Patrick Davis Stephanie Davis Stephen Holder Robert Swagerty

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant is a general contractor who brings this action against one of its subcontractors, claiming that Respondent, without legal excuse, abandoned the project for which Respondent had been hired. Respondent denies the allegation. This tribunal entered the complaint file received from the Registrar of Contractors (“ROC”) into the record. The parties presented evidence and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding abandonment. FINDINGS OF FACT 1. Respondent is the holder of License No. B.199643-R, a general residential contracting license issued by the ROC. The license authorizes Respondent to operate as a general contractor for residential projects. Robert Swagerty is the Qualifying Party. 2. Complainant is a general contractor who hired Respondent as a subcontractor in September 2010 to perform removal and replacement of a roof for a remodeling project. That work included replacement of a skylight that subsequently leaked in December 2010. Complainant notified Respondent of the problem. One of Complainant’s workers taped the skylight as a temporary fix on December 28, 2010, until Respondent could look at it, which took a few days. 3. On December 30, 2010, Stephen Holder, Qualifying Party of Holder and Jeffrey Contracting LLC, a licensed general contractor and a subcontractor of Respondent who performed the roof work, went to the site to look at the skylight. He testified that he found tape on the skylight and that the tape was an inappropriate method for sealing it. He was not happy that tape had been put on the skylight, but he did not inform Respondent or Complainant that he was no longer responsible for the skylight because of the tape. Instead, he left the tape on the skylight and cleaned out the weep holes, believing that clogged weep holes were the cause of the leak. Respondent also did not inform Complainant that the tape was improper or that it voided Respondent’s responsibility for the integrity of the skylight. 4. Sometime between December 2010 and March 2011, the skylight cracked and leaked again. Complainant called Respondent in March 2011 to take a look at it, and Respondent refused to do so. Complainant was adamant that Respondent correct the skylight because rain was forecast. Respondent continued to refuse. 5. Robert Swagerty testified on behalf of Respondent that in March 2011, Respondent refused to do further work at this project because Complainant had outstanding debts with Respondent for other projects. Mr. Swagerty admitted that Complainant had paid in full for this project. 6. Text messages between the parties on March 17 and 18, 2011, show that Respondent refused to go back, not due to the tape issue, but due to the alleged non-payment of other debts. The tape issue was not raised until Respondent’s Written Answer to Citation and Complaint, filed with the ROC on November 14, 2011. 7. Due to Respondent’s refusal, Complainant found it necessary to correct the skylight itself in March 2011. Complainant has submitted records of the time and materials that it took to do so. The total cost was $1,450.47.[1] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violation of two ROC statutes, A.R.S. § 32-1154(A)(1), which prohibits abandonment of a contract without legal excuse, and A.R.S. § 32-1154(A)(3), by way of A.A.C.R4-9-108, which requires a contractor’s work to meet minimum workmanship standards. In this case, however, finding a violation of A.R.S. § 32-1154(A)(3) is precluded by A.R.S. § 32-1155(C), which prohibits the ROC from citing a contractor for a workmanship violation when the work has been modified by others. Here, Complainant modified Respondent’s work in March 2011. Thus, it is recommended that the workmanship allegation be dismissed. 3. The primary issue for decision in this matter is whether Respondent has violated A.R.S. § 32-1154(A)(1). The evidence shows that Respondent abandoned the contract by refusing to perform corrective work in March 2011 without legal excuse. At the time, Respondent’s refusal was due to alleged payments that Complainant owed to Respondent on other projects. That excuse is not a valid legal excuse. A contractor cannot refuse to perform corrective work on a project for which the contractor has been paid in full. Later, Respondent’s excuse was that Complainant had improperly applied tape to the skylight in December 2010, thereby releasing Respondent from any obligation to perform corrections. However, Respondent’s agent performed work on the taped skylight in December 2010 and did not inform Complainant that it was a problem, thus accepting the tape. Therefore, that excuse too is not a valid legal excuse. 4. Complainant has shown abandonment and that it incurred expenses of $1,450.47 to perform the work that was Respondent’s responsibility. 5. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on March 26, 2012. That prior record shows that Respondent has held the license since September 2004 and has never been disciplined. As such, it is a good record. Because of this good record, this tribunal recommends an award of restitution and no other discipline. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.199643-R, held by New Legacy Building and Design Incorporated, be suspended beginning the effective date of the ROC’s Order until the ROC receives written proof that Respondent has paid Complainant $1,450.47 in certified funds, 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 2011-5060 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, March 26, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Based on Complainant’s documentation, this includes $1,360.00 for labor and $90.47 for materials. It does not include mileage and administrative fees as listed in the documentation. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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