ALJDEC decisions subject to certification as final

2012A-2128-ROC · Registrar of Contractors · 2012-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2012 APPEARANCES: Complainant Brian Schader was represented by Jason M. Kelly, Esq. Respondent Speros Enterprises Inc doing business as (“dba”) Jamesons Contracting Company was represented by Jennifer A. Reiter, Esq. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.260262-D to Speros Enterprises Inc dba Jamesons Contracting Company (“Respondent”). On or about April 24, 2012, Brian Schader (“Complainant”) filed a Complaint with the Registrar that alleged that Respondent had not completed the installation of a hard surface driveway of concrete pavers at his home at 16607 North Paradox Drive, Fountain Hills, Arizona. Complainant requested that the Registrar require Respondent to “[r]esume work immediately” and to “[r]emove substandard 4” border and replace with solid concrete border.” The Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection. On May 15, 2012, Inspector Cason issued a Corrective Work Order (“CWO”) that required Respondent “to complete/correct this project per the Town of Fountains [sic] Hills[’] building permit and approved cross section detail for the curbing and grading with the installation of pavers per the parties[’] verbal agreement by appropriate means” within 15 calendar days. After Complainant requested a hearing, the Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32- 1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32- 1154(A)(13), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint denying any violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing. At a pre-hearing inspection, Inspector Cason determined Respondent had taken no action on the CWO. A hearing was held on December 7, 2012. Inspector Cason testified. Complainant submitted 44 exhibits, testified on his own behalf, and presented the testimony of David Montgomery, Civil and Structural Engineer. Respondent submitted nine exhibits and presented the testimony of four witnesses: (1) Stanley Runnels, general contractor and realtor; (2) Daniel Speros, Qualifying Party of Respondent; (3) Mr. Schader; and (4) James Speros, Principal of Respondent. Hearing Evidence On or about August 26, 2010, Complainant posted an ad on Craigslist.com seeking a hard surface driveway with pavers or concrete. Complainant indicated that he had “a 2005 Volvo MC60 skid steer loader, like new w/262 hours” and a “2004 Load Trail equipment hauler trailer” available for trade and that he would “pay the difference to complete the driveway.” On or about August 27, 2010, Respondent replied to Complainant’s post indicating that he may be able to do the job. Through telephone calls and emails, the parties entered into a verbal agreement regarding the project. The equipment was valued by the parties between $15,000.00 and $18,000.00. While the parties agreed Complainant offered a piece of sculpture in exchange for the extra cost of the project, the record did not establish when the sculpture became part of the deal. On or about November 2, 2010, Complainant submitted an Application for Plan Review and Building Permit to the Town of Fountain Hills. On or about April 12, 2011, Complainant received a Right-of-Way Encroachment Permit from the Town of Fountain Hills. The plans submitted with the November 2, 2010 application had some marked changes included with the Right-of-Way Encroachment Permit. Respondent alleged he did not receive the marked-up copy of the plans during the pendency of the project. In September or October 2011, Respondent began work on the project. Between September 2011 and February 2012, Respondent manufactured the pavers to be used, graded the roadway, placed a concrete block barrier with rebar, and placed aggregate base coating. Respondent also completed a section of the concrete block barrier with a concrete overcoat to demonstrate the finished look. In or around December 2011, Complainant indicated that he was having financial difficulties and may lose his home in foreclosure. On February 8, 2012, Respondent sent Complainant an email indicating that he wished to memorialize in writing, the terms of the contract to which they had previously agreed. The parties were unable to reach an agreement as to the exact terms that should be included. On or about April 10, 2012, Respondent filed in Superior Court to collect payment for the work completed on the project. On or about April 24, 2012, Complainant filed the Complaint with the Registrar. Following the issuance of the CWO, Respondent contacted the Town of Fountain Hills to review the work completed seeking a determination as to whether the work completed was deemed by the Town of Fountain Hills as being in compliance with the permit issued. A representative for the Town of Fountain Hills inspected the jobsite and determined the block and concrete borders installed were acceptable in terms of the permit issued. Respondent did not make any attempts to return to the project to comply with the CWO.[1] Respondent has not performed any work on the project since February 7, 2012. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on December 27, 2012, Respondent’s license was current and one complaint was pending against the license. CONCLUSIONS OF LAW The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). A.R.S. §§ 32-1151 to 32-1169. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837, 838 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A representative for the Town of Fountain Hills indicated that the work completed, while not what the approved plans required, was acceptable to the Town of Fountain Hills. Therefore, Complainant failed to establish that Respondent’s work on the hard surface driveway with concrete pavers was a departure from or disregard of plans, in violation of A.R.S. § 32- 1154(A)(2).[2] The parties acknowledge and agree the work on the project was not completed as set forth in the terms of the verbal agreement entered into by the parties or in accordance with the plans approved by the Town of Fountain Hills. Therefore, Complainant established that Respondent’s work on the hard surface driveway with concrete pavers was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[3] The contract at issue had a total value of more than $1,000.00 and was not reduced to writing at the time the contract was formed. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158.[4] The parties acknowledge and agree that Respondent did not make any attempt to comply with the CWO, which required that Respondent “complete/correct this project . . . per the parties[’] verbal agreement.” At the time of the CWO, there was a dispute between the parties as to the exact terms of the parties’ verbal agreement, a matter currently before the Superior Court. While a valid dispute may exist as to the terms of payment, there was no dispute that Respondent contracted to install a hard surface driveway with concrete pavers. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(23).[5] If Respondent fails to complete the driveway in a professional and workmanlike manner and in compliance with the Registrar’s standards, Complainant may request a compliance hearing. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Speros Enterprises Inc dba Jamesons Contracting Company’s License No. KB-1.260262-D until it has performed in a professional and workmanlike manner the repairs that the CWO directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the CWO directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Brian Shader’s Complaint in Case No. 2012-2128. 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 27, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At some point during the relevant time period, Complainant told Respondent that he could pick up his pavers from the jobsite. [2] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [3] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [4] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1158 requires that “any contract in an amount of more than one thousand dollars and less than one hundred fifty thousand dollars entered into between a contractor and the owner of a property to be improved” must be in writing. [5] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826