ALJDEC decisions subject to certification as final

2012A-226-ROC · Registrar of Contractors · 2012-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2012 APPEARANCES: George Akkurt appeared personally. J R A General Contracting, L.L.C. was represented by its qualifying party and authorized employee, Clarence Goodlett. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. J R A General Contracting, L.L.C. (“Respondent”) is the holder of License No. B-1.217532-C, a commercial general contracting license, issued by the Registrar of Contractors (“Registrar”). 2. George Akkurt (“Complainant”) filed a written Complaint with the Registrar alleging statutory violations by Respondent on a residential remodeling construction project located at 4341 N. 87th Place, Scottsdale, Arizona. The Registrar designated Complainant’s Complaint as Case No. 2012-226. 3. The Registrar issued a Citation and Complaint in Case No. 2012-226 charging Respondent with violating the provisions of A.R.S. §§ 32- 1154(A)(9), 32-1154(A)(13), namely A.R.S. § 32-1158, and A.R.S. § 32- 1154(A)(17). 4. The Registrar forwarded Case No. 2012-226 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. Complainant’s Complaint states that the parties entered into a written agreement for the subject project on September 4, 2011. However, no written contract was submitted. Complainant further alleges that the last date of work by Respondent was December 6, 2011. 6. Robert Norton, a private investor, was Complainant’s lender on the subject project. 7. Mr. Norton recommended to Complainant that Respondent and Respondent’s qualifying party, Clarence Goodlett, be the project’s general contractor. Mr. Norton had previously used Respondent on other projects. 8. Complainant received a written Scope of Work with costs from Respondent’s email address, [email redacted], for work to be performed on the subject project. The documentation does not contain Respondent’s name or contractor’s license number. 9. By email dated October 31, 2011, Mr. Goodlett sent Complainant new cost breakdowns and advised that he would have lien releases from subcontractors who had filed pre-liens. The email was sent by Mr. Goodlett using Respondent’s email address, [email redacted], to Complainant’s email address. 10. At the hearing, Complainant submitted documents reflecting Respondent’s name as the project’s contractor on the following documents: (1) a Revised Proposal dated September 22, 2011, from Sahuaro Plumbing, L.L.C. (“Sahuaro Plumbing”) that was approved by Mr. Goodlett; (2) a preliminary lien notice from Sahuaro Plumbing; and (3) a Conditional Waiver and Release on Progress Payment (“Conditional Waiver”) from Sahuaro Plumbing. The Conditional Waiver, executed by Sahuaro Plumbing, states that Sahuaro Plumbing received a check in the amount of $9,186.30 from Respondent on the subject project. 11. There is credible evidence that Respondent, through the actions of Mr. Goodlett, performed contracting on the subject project. Mr. Norton referred Respondent to Complainant. Mr. Goodlett communicated with Complainant using Respondent’s email address, [email redacted]. 12. Mr. Goodlett admitted that he performed consulting work on the project and met with building inspectors. Mr. Goodlett suggested contractors to Complainant. Such activities by Mr. Goodlett on behalf of Respondent constitute contracting. 13. Although Complainant claims to have paid Respondent in excess of the percent of the work completed on the project, Complainant failed to submit any credible evidence of any payments to either Respondent or Mr. Goodlett. At the hearing, Complainant submitted evidence of electronic withdrawals from Mr. Norton’s bank account. However, Complainant failed to present any credible evidence that either Respondent or Mr. Goodlett had received any of those funds for the subject project. Mr. Norton was unable to testify as to where those funds were sent. Mr. Goodlett denied that Respondent received any payments from Complainant for the project. 14. Respondent failed to enter into a written contract with Complainant on the subject project for the contracting work performed by Respondent. As a result of the lack of written contract, there is no credible evidence to establish that Respondent failed to complete its scope of work for a price agreed upon by the parties. 15. Respondent knowingly contracted beyond the scope of its commercial general contracting license by performing contracting on Complainant’s residential project. 16. Administrative notice is taken of the Respondent’s prior license record as reflected on the Registrar’s public website. Such prior License record on June 5, 2012, reflects one open complaint, one disciplined case, and one resolved/settled/withdrawn case against Respondent’s license. From September 22, 2011, until March 20, 2012, Respondent’s contracting license was on probation. Respondent’s license was suspended from September 14, 2011 to September 21, 2011. Respondent’s license is current. / / / CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Pursuant to A.R.S. § 32-1101(3), Mr. Goodlett acted as a contractor on the subject project. 4. Pursuant to A.R.S. § 32-1151, Mr. Goodlett could not legally perform contracting work on the project except under Respondent’s contracting license. The evidence of record established that Mr. Goodlett’s actions on the subject project were done on Respondent’s behalf. 5. Respondent violated the provisions of A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to enter into a written contract with Complainant as required by the statute. 6. Complainant seeks the return of $13,807.08 paid to Respondent for work not completed and $5,000.00 paid to Respondent for construction management. Respondent claims that it received no payments from Complainant. At the hearing, Complainant failed to present any credible evidence of any monetary payments to Respondent on the subject project. The evidence of record does not support a conclusion that Respondent failed to complete the subject project for the parties’ agreed upon contract price in violation of A.R.S. § 32- 1154(A)(9). 7. Respondent violated the provisions of A.R.S. § 32-1154(A)(17), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent performed contracting on the subject residential project when it is only licensed to perform work on commercial projects. RECOMMENDED ORDER Respondent’s License No. B-1.217532-C shall be revoked on the effective date of the Order entered in Case No. 2012-226. 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, June 5, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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