ALJDEC decisions subject to certification as final

2012A-3425-ROC · Registrar of Contractors · 2012-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2012, at 8:15 a.m. APPEARANCES: Complainant Travelers Inn appeared through Sam Amin, its general manager; Respondent Irish Touch Signs LLC appeared through Thomas Patrick Mulvey, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. L-38.262729-C to Irish Touch Signs LLC (“Respondent”). 2. The Registrar received a Complaint from Travelers Inn (“Complainant”) against Respondent regarding its failure to complete a sign for Complainant’s motel at 1526 East Route 66, Flagstaff, Arizona. 3. According to the Complaint, the amount of the parties’ contract was $16,035.00. Complainant attached to its Complaint a copy of the parties’ contract that did not include Respondent’s license number, an estimated completion date, the dollar amount of the advance deposit, or any information about Complainant’s right to file a complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A). 4. The Registrar assigned the Complaint to its inspector, Rick J. Emry, for investigation. After Inspector Emry inspected the jobsite, he issued a Corrective Work Order (“CWO”) to Respondent that required it to perform certain corrective action within fifteen days, in relevant part as follows: 1. The work he has done so far is not even under the compliance of city code which we found out from another contractor. The letters “VAC” are missing from the east neon No Vacancy sign. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufacturer's installation instructions.

2. Reader board is missing a face and caused short circuited. The Reader board is missing the west side approximate 4’ x 6’ [Lexan] panel of the reader board which is exposing electrical wiring and ballast to the elements. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufacturer's installation instructions.

3. We want our 50% payment back because he forfeited his contract. He said he will finish this job in two weeks and it’s now been 6 months (still unfinished). So we would like to get our money back and compensated for our business lost due to run-down sign. This statement concerns a monetary dispute which the ROC has no provision to address.

4. We have recorded last two conversations in which he says that he will be here but that hasn’t happened till to this date. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufacturer's installation instructions.

5. We have a bid from different contractor to finish his unfinished job which he has to pay for. This statement concerns a monetary dispute which the ROC has no provision to address.

5. After Respondent did not resolve Complainant’s Complaint to its satisfaction, the Registrar issued a Citation and Complaint, charging Respondent possible violations of 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- 32-1158, and A.R.S. § 32-1154(A)(23). 6. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A hearing was held on November 28, 2012. Inspector Emry testified. Complainant’s general manager, Sam Amin, testified. Respondent submitted one exhibit and presented the testimony of its qualifying party and member, Thomas Patrick Mulvey. Hearing Evidence 9. Inspector Emry testified that when he first inspected Complainant’s large electric sign, it was in a state of disrepair, was missing a Lexan panel, had exposed electrical wiring, and was missing letters. 10. Inspector Emry testified that he performed a prehearing jobsite inspection on November 26, 2012. Inspector Emry stated that at the time of the prehearing inspection, the sign had been repaired and that the repairs complied with the Registrar’s workmanship standards. 11. Mr. Amin asked Inspector Emry whether he had noted at the prehearing jobsite inspection that the letters, “VAC,” in the “Vacancy” sign were bigger than the other letters. Inspector Emry testified that the alleged inconsistency was not called to his attention and that he did not note any difference in the size of the letters. 12. Although Respondent submitted a photograph of its repairs to the sign, the photograph did not show the word, “VACANCY.” Mr. Mulvey testified that the letters, “VAC,” on the original sign were broken and that Respondent made a paper pattern of the broken letters to have new letters fabricated in a shop in Phoenix, Arizona. Mr. Mulvey testified that the letters that were fabricated and installed were the same size as the paper pattern of the letters. 13. Mr. Amin acknowledged that Respondent had completed its work, but asserted that fabrication of one sign should not have taken ten months. 14. Mr. Mulvey testified that it was a complicated project and that there had been several delays due to factors that were beyond Respondent’s control. 15. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 14, 2012. Such prior License record shows that Respondent’s License L-38.262729- C was current and only one complaint was pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Construction is not a perfect art and, generally, contractors must be afforded an opportunity to repair their work before their licenses may be disciplined. Complainant did not establish that after being afforded an opportunity to complete its work, Respondent’s repairs to the large electric sign were unprofessional or not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[4] Complainant also did not establish that Respondent failed to comply with the CWO, in violation of A.R.S. § 32-1154(A)(23).[5] Mr. Mulvey acknowledged that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, because its contract did not include Respondent’s license number, an estimated completion date, the dollar amount of the advance deposit, any information about Complainant’s right to file a complaint with the Registrar for an alleged violation of A.R.S. § 32- 1154(A), or the Registrar’s telephone number and website address.[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Respondent Irish Touch Signs LLC’s License No. L- 38.262729-C shall be suspended until Respondent has remedied its violation of A.R.S. § 32-1158. It is further recommended that the Registrar not suspend Respondent’s License but, instead, close Complainant Travelers Inn’s Complaint in Case No. 2012-3425 if on or before the effective date of the Registrar’s Order, Respondent provides written proof that satisfies the Registrar that Respondent has modified its contract form to comply fully with the requirements of A.R.S. § 32-1158(B). 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 14, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] 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.” [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.” [6] 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(B) requires any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 to be in writing and to include the following information: This statutory subsection 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.” The specific statute charged, A.R.S. § 32-1158(B), provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . .

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