ALJDEC decisions subject to certification as final

2012A-676-ROC · Registrar of Contractors · 2012-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2012, at 8:00 a.m. APPEARANCES: M. Isabel Rodriguez (hereinafter “Complainant”) appeared on her own behalf. Valley Wide Restoration Inc (hereinafter “Valley Wide”) appeared through its attorney, Julie A. LaFave, Esq., The Sorenson Law Firm LLC. A Spanish/English language interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Valley Wide is the holder of License No. B-3.238482-R issued by the Registrar of Contractors. 2. There was no dispute that Complainant suffered extensive fire damage to her residence. On or about December 18, 2010, Complainant entered into a contract with Valley Wide for the performance of fire damage restoration work on her residence. 3. During the course of construction, Complainant became dissatisfied with Valley Wide’s workmanship on her residence and during the first part of November, 2011, Complainant terminated Valley Wide from the construction project and retained a substitute contractor to complete the fire restoration project at her residence. 4. Valley Wide attempted to collect the amount of money that Valley Wide claimed that Complainant owed in a concurrent civil action. Complainant then filed the Complaint at issue against Valley Wide with the Registrar of Contractors. 5. There was no onsite inspection because Complainant’s substitute contractor had already performed fire damage restoration work on Complainant’s residence. 6. Complainant requested an administrative hearing and a Citation and Complaint was issued by the Registrar of Contractors charging Valley Wide with possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32- 1154(A)(2). 7. Complainant’s daughter, Geovany Melendez (hereinafter “Ms. Melendez”), testified that Valley Wide and Complainant entered into an oral agreement on or about October 7, 2011, wherein Respondent agreed to complete the fire restoration project at the residence within thirty days. Ms. Melendez stated that Valley Wide failed to complete the restoration project as agreed and Complainant terminated Valley Wide from the project. Ms. Melendez stated that Valley Wide utilized the wrong type of paint for the interior of the residence and failed to utilize the correct color of paint for the exterior of the residence.[1] 8. Complainant testified that she gave Valley Wide thirty days to complete the fire restoration project at Complainant’s residence and that Valley Wide failed to complete the construction project in the specified thirty- day period.[2] 9. Complainant testified that she retained Budget Flooring to complete the fire restoration project at her residence after she terminated Valley Wide. Complainant acknowledged that she owns Budget Flooring. Complainant asserted that Budget Flooring was a licensed contractor but that she did not know its license number.[3] 10. Bryan Lewis (hereinafter “Mr. Lewis”) testified that he is the owner of Valley Wide. Mr. Lewis stated that in October 2011, the parties agreed that the fire restoration project would be completed within thirty days. Mr. Lewis testified that the fire restoration project was not completed within the agreed-upon thirty-day period because Complainant refused to select construction materials that were within Complainant’s budget. Mr. Lewis stated that Complainant selected materials, including doors, appliances, flooring, and countertops, that were all beyond her budget and that she was unwilling to pay the difference in price. Mr. Lewis stated that the remaining plumbing work could not be completed until Complainant selected her floor tile and countertops.[4] 11. Mr. Lewis testified that the only alteration from the original footprint of Complainant’s residence was the doubling of the size of Complainant’s kitchen area and that this change was made at Complainant’s insistence.[5] 12. Brad Marucha (hereinafter “Mr. Marucha”) testified that he was the construction manager on Valley Wide’s fire restoration project at Complainant’s residence. Mr. Marucha stated that he was present for the meeting with Complainant in October 2011, at which Complainant agreed to make material selections and Valley Wide agreed to complete the fire restoration project within thirty days. Mr. Marucha testified that Valley Wide did not complete the fire restoration project because Complainant failed to make required material selections. Mr. Marucha stated that he informed Complainant that she would have to select less expensive materials that were within the construction budget or pay Valley Wide the difference in cost, and that Complainant refused to commit to either course.[6] 13. Tony Perez (hereinafter “Mr. Perez”) testified that he was an employee of Valley Wide when it performed work on the fire restoration project at Complainant’s residence. Mr. Perez testified that he attended the October 2011 meeting with Complainant and that he explained to Complainant in Spanish that she would have to make material selections within budget for the construction project to be completed.[7] 14. Mr. Perez testified that the exterior and interior of Complainant’s residence were painted the exact colors that Complainant selected. Mr. Perez testified that after Complainant complained about the paint, Valley Wide repainted the interior of Complainant’s residence in the same color with a different sheen in an attempt to satisfy her. Mr. Perez stated that the construction project was not completed because Complainant failed to make required material selections.[8] 15. Adam Salene (hereinafter “Mr. Salene”) testified that he is an independent insurance adjuster. Mr. Salene stated that he reviewed the fire damage at Complainant’s residence and prepared the fire damage repair estimate that Complainant’s insurance company approved. Mr. Salene testified that he attended the October 2011 meeting between Complainant and Respondent.[9] 16. Mr. Salene testified that much of the plumbing work could not be completed until Complainant made her flooring selection. Mr. Salene stated that Complainant wanted to remove the flooring budget from the construction project and to complete that portion of the construction project herself. Mr. Salene stated that the square footage of Complainant’s kitchen was increased, resulting in a requirement for more kitchen cabinets and a larger countertop area.[10] 17. Mr. Salene testified that he met with Complainant’s representative from Budget Flooring and explained that Budget Flooring’s estimate for the completion of Complainant’s fire restoration project included upgrades that exceeded Complainant’s loss. Mr. Salene stated that he informed Complainant that Complainant’s insurance company would not pay for the upgrades. Mr. Salene stated that he saw no reason to prepare a supplemental insurance recommendation for Complainant’s requested upgrades. Mr. Salene stated that he returned to Complainant’s residence in April 2012, and that the residence is now completed except for some small unfinished items.[11] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). 3. There was no dispute that in October 2011, Valley Wide agreed to complete the construction project within thirty days and Complainant agreed to make material selections. Complainant’s failure to make the agreed-upon material selections prevented Valley Wide from completing the construction project within the thirty-day period. This Tribunal concludes that the credible evidence of record is insufficient to support a conclusion that Valley Wide violated the charged provision of A.R.S. § 32-1154(A)(1).[12] 4. The only deviation from the original footprint of Complainant’s residence was the enlargement of the kitchen area and this deviation was an upgrade that was made at Complainant’s insistence. The colors of the exterior and interior paint that Valley Wide used on the residence are the colors that Complainant selected. There was no credible evidence that Valley Wide violated any applicable code requirements in its work at Complainant’s residence. This Tribunal concludes that the credible evidence or record is insufficient and fails to support a conclusion that Valley Wide violated the charged provision of A.R.S. § 32-1154(A)(2).[13] RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, this matter shall be dismissed. In the event of certification of this 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 the certification. Done this day, August 13, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 7/31/2012 Hearing Record (hereinafter “H.R.”) at 21:45-42:23. [2] H.R. at 54:27-56:07. [3] H.R. at 1:27:34-1:31:15. [4] H.R. at 1:34:40-140:44. [5] H.R. at 140:46-1:52:51. [6] H.R. at 1:58:40-2:06:12. [7] H.R. at 2:21:45-2:25:25. [8] H.R. at 2:25:27-2:32:09. [9] H.R. at 2:33:07-2:39:00. [10] H.R. at 2:39:01-2:45:30. [11] H.R. at 2:46:00-2:55:37. [12] A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [13] A.R.S. § 32-1154(A)(2) Departure 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.

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