ALJDEC decisions subject to certification as final

2014A-3631-ROC · Registrar of Contractors · 2016-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2015 APPEARANCES: Complainant Scott H. Strickland appeared on his own behalf. Rodney Stevens, Co-Owner and Qualifying Party, appeared on behalf of Respondent ABC Restoration LLC doing business as Rod’s Restoration. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License No. 287187 to ABC Restoration LLC doing business as Rod’s Restoration (Respondent). In March 2014, Scott H. Strickland (Complainant) entered into a verbal contract with Respondent for a remodel of a mobile home located in Sedona, Arizona. The total contract price was $40,000.00, and Complainant paid $8,700.00 toward the contract. After entering into the contract, Respondent first repaired the roof within three days. Respondent then began working on other parts of the project. On July 17, 2014, Complainant sent Respondent an email with the subject line “Quail Hollow – STOP ALL WORK.” The email went on to read, as follows: It is with regret that I feel the need to write this email, but after our trip up north today, I must express my extreme disappointment and concern with where we’re at on this project. This week I scheduled 2 days off work so I could be on site during the most important part of this whole project…the crawl space. I don’t know why I had this impression, but I expected to arrive and find work well underway or at least ready to get started and get this thing knocked out. What I found instead, were 2 very reluctant and apprehensive employees of yours one, so much so, that he stated to me that he was concerned that if he was bitten by a spider, that his insurance wouldn’t cover it. Well, needless to say, the alarm bells started going off in my head! . . . . If we are to move forward again with this work, I need strong assurances that your company is able to complete this work properly and as agreed to, and that the work will be performed by employees who are qualified and willing to do the job. I would also request that you confirm that ABC Restorations has adequate insurance including workman’s comp to address any concerns that your employees may have regarding not being covered for any injuries incurred while on the job. I do feel bad about writing this email but I hope you understand where I’m coming from.

By response email, Respondent provided a copy of their workers comp certificate. Respondent also stated the following: Per Rod, we are removing the trailer with all the debris from the jobsite. The leftover materials from the roof is sitting in the garage for your use. We will leave a copy of the 2 year warranty on your kitchen counter. I hope you can have your project completed as you desire as it is a beautiful place and will be a place that you can be happy to retire in.

According to Mr. Stevens, he never heard from Complainant again. On or about September 12, 2014, Complainant filed a complaint with the Registrar against Respondent alleging poor workmanship relating to some electrical work, the roof, and the skylight. On December 2, 2014, Investigator Philpott conducted a jobsite inspection. Complainant and Respondent were both present at that inspection. At the time of the inspection, the only portion of the contract that was fully complete was the roof. Investigator Philpott walked the roof with Complainant and Respondent and did not detect any deflection in the rafters and found the roof and sheeting to be structurally sound. Investigator Philpott concluded the only remedy for the visual defect of dips in the roof was to install new rafters on the entire home, which is far beyond the scope of the contract. As to the incorrect skylight, Respondent provided evidence that the skylight installed was the one requested by Complainant. Investigator Philpott noted that carpentry and drywall work needed to be completed on the inside of the home around the skylight, but Complainant had issued the stop work notice and did not want Respondent to return to the job. Investigator Philpott also found that there was electrical work that was uncompleted. Mr. Stevens stated at the inspection that when he attempted to complete the electrical work, he had been locked out of the site. Complainant acknowledged sending the stop work email and informed Investigator Philpott that he did not want Respondent to return to complete the electrical. Respondent offered a full refund of the charges for the electrical work completed and Complainant agreed. Complainant also stated that he did not was Respondent to return to the jobsite unless the Registrar instructed Respondent to correct the roof. The day after the inspection, Respondent sent Complainant a modified invoice showing the credit for the electrical work that had been done but not completed. Complainant then filed an amended complaint alleging abandonment requiring an additional jobsite inspection. Prior to the inspection, Investigator Philpott sent an email to the parties requesting that they provide and agree to a written contract setting forth the scope of work and the total contract price and including all the minimum elements of a contract as required by statute. When Investigator Philpott arrived, Respondent had a contract prepared, but Complainant did not agree to all the terms. It was determined that Complainant would cross out items he did not agree with and the inspection could go forward. At the conclusion of the inspection, Investigator Philpott believed the matter was resolved as to the contract, but Complainant later refused to sign the contract. The Registrar assigned the Complaint to Investigator Steven Philpott for investigation. On or about April 1, 2015, after a jobsite inspection, Investigator Philpott issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

Complete scope of contract as listed below: 1) Replace insulation, moisture barrier 2) Completed Electrical 3) Complete carpentry and drywall at skylight

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

When Investigator Philpott asked if the corrective work had been completed, Complainant’s wife, Barbara Strickland, notified him that another contractor had completed the insulation work under the home. Ms. Strickland then clarified that the other contractor had been hired after the deadline for compliance set forth in the directive. The next day, Ms. Strickland called back and said the work had not been done. Investigator Philpott then scheduled a prehearing inspection to determine if the work had been done, but Complainant was not present at the time of the inspection and instructed Investigator Philpott not to admit Respondent onto the property with his presence. Therefore, Investigator Philpott was unable to perform a prehearing inspection to determine the current status of the project. To conclude the matter, Investigator Philpott submitted a pencil cite for failure to comply with A.R.S. § 32-1154. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32- 1154(A)(1). At hearing, Complainant testified that the roof did not meet his expectations and that it was not the top notch roofing job that he had paid for. Complainant acknowledged that he issued the stop work notice instructing Respondent to leave the jobsite, but pointed out that the email stated, “If we are to move forward again with this work,” which indicated the stop work notice was not intended to be an end to the contract, but a pause until the requested assurances had been provided. Complainant asserted that Respondent “cherry-picked” the project and replaced the roof within days of the initial payment being made because it was the easiest and most profitable part of the job. At hearing, Mr. Stevens testified that the roof installed was in compliance with industry standards as demonstrated by the Registrar’s inspection. Mr. Stevens stated that the roof was taken off during the monsoon season, so it was important to put the new roof on quickly. Mr. Stevens testified that Respondent was ready, willing, and able to perform the work, but that after the stop work notice was issued, he had no option but to leave the project. Mr. Stevens acknowledged that once they got into the project, it turned out to be more than he originally thought, but that he was still going to finish the project as agreed upon. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 2, 2016. Such prior License record reflects that Respondent’s License No. 287187 is current, has had no prior discipline, and has no other pending complaints against it. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 evidence at hearing established that Complainant issued a stop work notice prior to the work being completed by Respondent. Therefore, Complainant did not prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).[1] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Scott H. Strickland. 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, March 2, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment 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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