ALJDEC decisions subject to certification as final

2014A-2216-ROC · Registrar of Contractors · 2015-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2015 APPEARANCES: Dwayne Dee Woodard, Complainant; Charles Rogers, Respondent’s representative; Tafi Brower, Andrew Duran, and Bruce Maeder, witnesses ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having considered the evidence in the record, the undersigned Administrative Law Judge hereby recommends that this appeal be dismissed. FINDINGS OF FACT 1. Complainant contracted with Respondent for various projects on a home that Complainant was purchasing and fixing up for Tafi Brower, Complainant’s neighbor.[1] 2. After several small projects were completed on the home, Complainant filed a complaint against Respondent with the Registrar of Contractors. The complaint was filed on June 3, 2014 and it was signed by the Complainant. In the portion of the complaint that asked the filer to list their items of complaint, Complainant wrote “N/A” in the first three numbered blanks and left the rest blank. Then he attached over 70 documents. 3. The assigned Investigator, Kyle Pich, conducted a job site inspection and managed to identify some items in need of correction. He issued a written directive on February 26, 2015 directing Respondent to remedy 5 items.[2] 4. At the hearing, Complainant had a great deal of difficulty understanding the issues set for hearing and it took almost 20 minutes to redirect him and his witness to discuss the workmanship issues. In the meantime, Ms. Brower testified that Respondent refused to give her an estimate and started the porch roof before she could get a permit and do some other things she wanted before the work was to begin. This testimony was not credible because Ms. Brower was living at the address where the work took place. When asked why she let Respondent work on the home if she didn’t want him to, she stated that she had no way to stop him, and that he built it in a day and a half. She then said she had pictures of the work. The pictures submitted to the Registrar[3] were all taken during construction. Clearly, Ms. Brower could have stopped Respondent from working on the project if she was there taking pictures and if, as she stated, she was living there in order to oversee the project. Further, it is unlikely that any contractor would want to do work on a home without an agreement from the homeowner on what work they are to do. Ms. Brower implied Respondent did something wrong by finishing the porch roof in a day and a half. She was overly focused on obtaining some refund or damages from Respondent when it wasn’t an issue at the hearing. Ms. Brower’s testimony lacked any credibility whatsoever. Mr. Woodard testified that he wasn’t on the site and never met Respondent so he had no credible evidence to offer either. 5. Because Complainant has the burden of proof, and because Complainant had no credible evidence to offer in support of the complaint, this matter should be dismissed without any further inquiry. However, if the Registrar should find that Complainant might have met his burden of proof somehow, Respondent’s evidence will be summarized as well. 6. Respondent’s Qualifying Party, Charles Rogers, testified that he was only asked to find a crew who could be paid directly for their labor in a cost plus, “pay as you go” agreement, so no contract was entered. He said they reached an impasse and so he left the job so they could work it out. When he received the written directive to correct some work, he contacted Complainant and asked if he could go do the corrective work. Complainant instructed Mr. Rogers not to go on the property without Ms. Brower’s permission. However, Ms. Brower was never available when he called her, so he was unable to do the corrective work.[4] He was willing to do the corrective work at all times. 7. Andrew Duran, one of the workers, testified that Ms. Brower agreed to the cost plus agreement and requested that they build the patio the way it was built. She also agreed to the siding that was installed, to having the stairs the way they were and the pitched roof at the front entry. He also testified that he was present multiple times when Mr. Rogers tried to contact Ms. Brower for permission to go complete the corrective work. He was also aware that Ms. Brower had agreed that he was to be paid directly from Ms. Brower. 8. Bruce Maeder, another worker, testified that he was present when Ms. Brower upgraded building materials, when Ms. Brower made the decision to build the side deck the way it was and the front entry the way it was. He was also aware that he’d been hired to do the job as a piece job by the homeowner. 9. Ms. Brower offered more testimony, which was not in any way credible. Complainant admitted that he did ask Respondent to check with Ms. Brower before going to the home to do the corrective work.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3) and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. 4. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4- 9-108. 5. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. In this case, Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(2) or (22). The credible evidence established that Respondent followed the instructions given by Ms. Brower and did not deviate from any plans. Further, the credible evidence established that Respondent respected Complainant’s property rights by not going to do the corrective work without getting permission from Ms. Brower, as Complainant had asked. Unfortunately, Ms. Brower refused to make herself available, thus discharging Respondent’s obligation. 7. Regarding A.R.S. § 32-1154(A)(3), the written directive identified some workmanship issues that Respondent did not dispute. Therefore, Complainant did establish a violation. However, the workmanship issues were not serious enough to merit the imposition of any disciplinary action against Respondent.

RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that this matter be dismissed.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification. Done this day, December 17, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Ms. Brower stated at the hearing that she lives behind Complainant’s house. However, a handwritten statement by her in the case files states that she is the occupant of the home in question and Complainant resides at another address, which is consistent with the other testimony at the hearing. Ms. Brower explained that Complainant is buying the home for her despite the fact that she has no familial or romantic ties with Complainant, who was an elderly gentleman who did not appear to know much about what he was buying and who delegated oversight of the project to Ms. Brower. See case file, Intake Additional Docs Submitted4.pdf, unnumbered page 2. Please note that throughout the documentation of this matter, various people referred to Ms. Brower as “Cathy” on a continual basis when at the hearing and in some paperwork she referred to herself as Tafi. [2] The items were as follows: Siding not nailed and caulked properly…Holes along siding to soffits….Deviation from blueprint front and back doors installed with wrong swing…Trim around windows, doors, corners, etc. not nailed properly and not caulked and painted…Door thresholds not finished properly… The directive noted that the door that swings the wrong way may not be correctable due to its nature and the electrical wiring that was moved to compensate for deviating from the blueprint. See case file at Rcc014Corrective Work Order1.rtf. The Investigator’s jobsite inspection notes in the case file at Rcc100 Jobsite Inspection Notes1.rtf indicate that many other items had been brought to his attention for this complaint against Respondent, but in a telephone call with Ms. Brower, she admitted that a plumber, electrician, sheet rocker, tin roofer, “etc.” had been paid separately and Respondent really had only done framing, siding, window and door installations, and porches, and was not responsible for several of the items complained of. [3] See case file at LgCiteDoc4.pdf. [4] Hearing Record at 41:00 to 42:00.

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