ALJDEC decisions subject to certification as final

2011A-670-ROC · Registrar of Contractors · 2011-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2011

APPEARANCES: Complainant appeared on his own behalf and was represented by attorney Joe Dylo; no one appeared on behalf of Respondent.

WITNESSES: Scott Deering, ROC Inspector Andy Pulsipher, Architect Jerry Coblentz, Project Manager for Complainant George Stavros Susan Stavros, Complainant’s wife

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action complaining about Respondent’s poor workmanship and failure to complete a major remodeling project at Complainant’s residence. The Citation and Complaint alleges abandonment of the contract; failure to build according to plans, specifications, or code; poor workmanship; failure to complete the project for the price agreed upon; and failure to comply with a Corrective Work Order. 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, along with Complainant’s Exhibit A. Complainant presented evidence and testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations of the contracting laws and recommending revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of license KB-2.224789-D, a dual general contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for small commercial residential projects. Respondent’s Qualifying Party is Scott Fisher. 2. Complainant hired Respondent by a written contract to build an addition and to remodel his home in December 2007.[1] The contract was a fixed price contract. It was amended by the parties in 2008 and again in 2009.[2] Including the amendments, the total contract price for the job was $632,000.00. 3. Respondent performed some of the work but not all of it. Sometime in July 2009, Respondent “walked away” from the job. Complainant hired Jerry Coblentz to help him coordinate the completion of the job with plumbing, electrical, and landscaping subcontractors. A Certificate of Completion was obtained in December 2009. 4. In February 2011, Complainant filed an ROC complaint against Respondent listing 20 items that he claimed were either poorly built or unfinished. ROC Inspector Scott Deering performed a jobsite inspection and issued a Corrective Work Order (“CWO”) dated March 3, 2011. In the CWO, Inspector Deering found that many of the items had been corrected by others. However, he ordered Respondent to correct several items, including installation of a steam shower (item 3), installation of a grey water system (item 4), completion of the driveway (item 9), completion of a fireplace (item 12), repair of floor tile cracks (item 15), completion of the workshop floor (item 16), proper installation of the kitchen garbage disposal (item 19), and correction of toilet clearance from wall (item 20). 5. Respondent did not perform any work on the project after the CWO was issued. 6. Complainant testified that Respondent failed to finish the job. He also testified very generally that he paid approximately $807,000.00 in total to get the project to completion. He testified generally that he overpaid Respondent for work that was part of the contract. 7. The evidence submitted is not sufficient to find a specific amount of restitution that might be due to Complainant. 8. Respondent did not appear at the hearing to dispute Complainant’s evidence. 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)(1)(prohibits abandonment of a contract without legal excuse), (A(2)(requires building in accordance with plans, specifications, and building codes), (A)(3) by way of ROC Rule R4-9-108 (requires that work meet minimum workmanship and industry standards), (A)(9) (requires completion of a project for the price agreed upon), and (A)(23)(requires that licensees comply with CWOs). Respondent has violated those provisions. 3. The uncontested evidence shows violations of the provisions cited in the Citation and Complaint. Respondent abandoned the project, did not comply with specs or code, performed with poor workmanship, failed to complete the project for the price agreed to (Complainant overpaid on the contract), and failed to comply with a CWO. 4. A review of current ROC records shows that Respondent’s license is currently suspended for lack of bond as of August 11, 2011. Pursuant to A.R.S. § 32-1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 5. The appropriate sanction in this matter is revocation. RECOMMENDED ORDER IT IS RECOMMENDED that license KB-2.224789-D, held by 21st Century Construction Co. 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, August 26, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A. [2] Id. [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).

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