ALJDEC decisions subject to certification as final

2012A-826-ROC · Registrar of Contractors · 2013-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2013, at 1:00 p.m. APPEARANCES: Blan Enterprises LLC (hereinafter “Complainant”) appeared through its owner, Dale Blan. Amp D Electrical Systems LLC dba Amp D Enterprises (hereinafter “Amp”) appeared through is qualifying party, Robb Lee Duncan. 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. Amp is the holder of License No. K-11.222945-D issued by the Registrar of Contractors. 2. Complainant is the developer of an apartment complex indentified as the “8th Street Apartments.” 3. This is a commercial matter where the parties entered into an agreement for Amp to perform electrical work on a remodeling project at the 8th Street Apartments. During the course of construction, the parties became embroiled in a financial dispute regarding alleged extras. 4. After the parties were unable to resolve their differences, Complainant filed a formal complaint against Amp with the Registrar of Contractors. 5. The Registrar of Contractors’ Order Dismissing Violations of A.R.S. § 32- 1154(A)(2) and A.R.S. § 32-1154(A)(3)/Order Allowing Citation of A.R.S. § 32-1154(A)(1) provided, in pertinent part, as follows: On or about February 13, 2012, Complainant filed its Complaint against Respondent with the Registrar alleging, among other things, poor workmanship and abandonment. In its Complaint Form, Complainant indicated that it had “hired another contractor to finish the work.”

On or about March 1, 2012, Larry Woodside from Graham County Planning and Zoning/Community Development submitted written correspondence in this matter with the Registrar providing, among other things, that he “was ask[ed] to do a pre inspection on the electrical. When [he] got to the jobsite [he] was told that [Respondent] was no longer the electric contractor on the job and that [he] needed to check all wiring and equipment to see if there were any changes needed on the existing wiring.”

A.R.S. § 32-1155(C) provides: “The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor’s work has been subject to neglect, modification or abnormal use.”

Upon review and consideration of Complainant’s admitted modification of the alleged workmanship deficiencies, the Registrar concludes that it is prohibited from issuing a Citation and Complaint alleging violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, in this matter as Respondent’s work was subject to modification by an alternative contractor. However, the Registrar will allow Complainant to proceed with this matter as it relates to any alleged abandonment because A.R.S. § 32-1155(C) does not preclude the Registrar from issuing a Citation and Complaint for alleged abandonment, even if the work has been modified by an alternative contractor.

The Registrar issued a Citation and Complaint alleging a violation of A.R.S. § 32-1154(A)(1) on August 8, 2012. Respondent has until August 23, 2012 to file a timely written Answer to the Citation and Complaint with the Registrar.

6. Complainant’s owner, Dale Blan (hereinafter “Mr. Blan”) testified that Amp’s employees failed to appear as scheduled. Mr. Blan stated that Complainant and Amp attempted to resolve their differences and that Amp agreed to finish the construction project. Mr. Blan testified that when the construction project was nearly completed, Amp submitted a letter stating that there was $14,000.00 owed to Amp for extra electrical work performed at the construction project. Mr. Blan stated that Amp indicated that it would not complete the construction project unless it was fully paid for all of its electrical work including the money owed for the alleged extras.[1] 7. Mr. Blan testified that Complainant’s attorney then mailed Amp a written communication entitled “Notice of Intent to Enforce Contract, Notice of Breach of Contract, Demand that Amp Cease and Desist” on December 22, 2011.[2] The letter notified Amp that Complainant had hired another contractor to complete the electrical work on the 8th Street Apartments. Mr. Blan stated that the parties’ construction agreement required that all change orders be in writing and signed by Complainant. Mr. Blan testified that there were no extras for the construction project and that all of the electrical work performed by Amp was required by the parties’ construction contract.[3] 8. The December 22, 2011 letter provided, in pertinent part, as follows: Because of your refusal to apply power until the invoice of $14,756.14 (amount not contemplated in the contract of August 24, 2011), Mr. Blan has no other choice but to order you to cease and desist immediately from working at the 8th Street Apartments. Accordingly, you are put on notice that because of your breach of the contract of August 24, 2011, you are no longer permitted to be on or near the premises of 8th Street Apartments for the purpose of providing electrical services. Please be advised that, after receiving this demand that you cease and desist from working at the 8th Street Apartments, if you return to the premises of 8th Street Apartments, you will be committing trespass against Mr. Blan and your actions may be prosecuted by any available means.

9. Robb Lee Duncan (hereinafter “Mr. Duncan”) testified that Amp failed to keep adequate records of extra work performed for Complainant on a prior construction contract. Mr. Duncan stated that for the 8th Street Apartments, Amp kept detailed records for all of the extra work and materials. Mr. Duncan stated that the plans and specifications for the project did not include all of the electrical work that was required at the project.[4] 10. Mr. Duncan testified that Amp’s invoice of December 15, 2011,[5] was the only way that Amp could get paid for all of its labor and material. Mr. Duncan stated Amp filed a mechanic’s lien and that Complainant then stopped Amp’s work at the 8th Street Apartments when Complainant’s attorney sent the December 22, 2011 letter directing Amp to cease and desist all work at the construction project. Mr. Duncan testified that Amp was not allowed near the 8th Street Apartments after the December 22, 2011 letter was issued. Mr. Duncan stated that Amp’s invoice required that the invoice be paid in full before power would be applied. Mr. Duncan testified that Amp was always willing to complete the construction project but was prevented from doing so by the December 22, 201 letter.[6] 11. Mr. Blan testified that all of the electrical work that Amp claimed as extras in its December 15, 2011 Invoice was already installed on the 8th Street Apartment project. Mr. Blan stated that Mr. Duncan said that Amp would not complete 8th Street Apartments unless Complainant agreed to pay Amp for the alleged extras. Mr. Blan testified that there were no written change orders for the construction project.[7] 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. The December 22, 2011 letter issued by Complainant’s attorney required Amp to cease and desist immediately from working at the 8th Street Apartments and informed Amp that it was no longer permitted to be on or near the premises of 8th Street Apartments for the purpose of providing electrical services. This Tribunal concludes that Complainant failed to meet its burden of proving that Amp violated the charged provision of A.R.S. § 32-1154(A)(1).[8] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, 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, February 14, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 2/4/13 Hearing Record (hereinafter “H.R.”) at 12:35-16:40. [2] See Exhibit No. R-2 (12/22/12 Notice of Intent to Enforce Contract, Notice of Breach of Contract, Demand that Amp Cease & Desist Work). [3] H.R. at 16:41-21:09. [4] H.R. at 21:10-23:20. [5] See Exhibit No. C-1 (12/15/11 Invoice). [6] H.R. at 23:21-26:07. [7] H.R. at 26:08-28:01. [8] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

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