ALJDEC decisions subject to certification as final

2014A-4331-ROC-RHG · Registrar of Contractors · 2016-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 26, 2016 APPEARANCES: Linda Enright for Complainant; Bart Del Duca for Respondent; Steve Klein, Registrar of Contractors Investigator; Jim Greener and Boson Goodwin, Complainant’s witnesses; Luis Chavez, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint with the Registrar of Contractors, Complainant established that Respondent failed to complete several punch list items in the Directive from the Registrar. The evidence established that the items would total about $2,000 to complete. Respondent did not establish a valid defense. Therefore, it is recommended that the Registrar of Contractors find that Respondent violated A.R.S. § 32-1154(A)(22) and impose a one-day suspension and a $500.00 civil penalty. FINDINGS OF FACT 1. Complainant contracted with Respondent for the construction of a business space. During the project, Complainant’s representative, Linda Enright, withheld further payments on the contract totaling at least $32,000.00 claiming that she was entitled to do so. Respondent refused to do further work without being paid. Complainant filed a complaint with the Registrar of Contractors. 2. Registrar of Contractors Investigator Steve Klein conducted an inspection and issued a Directive from the Registrar on February 5, 2016, ordering Respondent to repair some of the items that were in the complaint and declining to include the rest. 3. Respondent completed some of the items in the Directive but refused to complete the remaining punch list items because Complainant still owed money on the contract. The contract does not have a schedule of payments such that it could be determined that Complainant was in breach of the contract without a full evidentiary hearing on that issue. 4. Respondent’s representative alleged that Complainant denied him access to the property to complete the repairs, but Respondent offered no evidence that Complainant denied access within the time period allowed by the Directive from the Registrar to complete the repairs, and some of the repairs were actually completed. Therefore, Respondent was unable to establish that it was prevented from completing the repairs in the Directive. 5. The greater weight of the evidence established that the remaining work from the Directive would cost about $2,000.00 or less and could be completed in one day. 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)(3) and (22) and A.A.C. R4-9-108. 3. 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. 4. 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. 5. Complainant established that Respondent violated A.R.S. § 32- 1154(A)(22) because it was undisputed that Respondent failed to complete all of the items in the Directive from the Registrar. Complainant did not establish a violation of A.R.S. § 32-1154(A)(3) because the project was not completed when the complaint was filed, so it would not be appropriate to say that the unfinished project had poor workmanship. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge recommends that the Registrar of Contractors suspend Respondent’s license for one day and impose a civil penalty of $500.00.

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, June 9, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826