ALJDEC decisions subject to certification as final

2015A-2080-ROC · Registrar of Contractors · 2016-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2016 APPEARANCES: George Navarro, Complainant’ Robert Murray, Respondent’s representative; Frank Grochocki, Registrar of Contractors Inspector; Timothy Barley, Respondent’s witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against Respondent with the Registrar of Contractors, Complainant did not establish a violation of the Arizona contracting laws. Therefore, it is recommended that the complaint be dismissed in its entirety. FINDINGS OF FACT 1. Complainant and his mother contracted with Respondent for the remodel of Complainant’s mother’s home, which included an original building with additions on it. After the contract was signed, Code Enforcement required one of the later additions to be demolished, leaving Respondent unclear about how to proceed on the project. 2. Respondent offered Complainant a floor plan with ideas on how to proceed with the project, but Complainant either did not respond or did not have his mother approve the new plans or offer any alternatives. 3. Complainant filed a complaint with the Registrar of Contractors. Inspector Frank Grochocki conducted a job site inspection on July 7, 2015 and issued a Directive from the Registrar on July 30, 2015 instructing Respondent to complete the project. No new work was completed. 4. Respondent’s representative, Robert Murray appeared at the hearing and testified that he did not complete the project because it was not clear how Complainant and his mother would be able to pay if he continued with the work. However, as the hearing proceeded, he also revealed that he did not know how to complete the contract because Complainant and his mother would not communicate with him about how to do so now that part of the subject of the contract had been demolished and no longer existed. He testified that the demolition took place in May or June of 2014 and in or around August of 2014, he drew up a new floor plan for Complainant’s mother’s approval but no approval was granted. Complainant did not remember receiving the floor plan and stated that the project stopped because communication stopped. 5. Mr. Murray acknowledged that he stopped returning Complainant’s telephone calls after Complainant talked to him 5 or 6 times but had the same conversation every time and would not obtain approval on the floor plans or make any agreements about how to move forward. 6. Complainant testified that he wants the contract completed as it is written, even though he acknowledged that the contract envisioned a remodel of a home, part of which existed at the time of the contract but was demolished. 7. Mr. Murray testified that he has some money left of what Complainant gave him but will not proceed until he knows what they will be doing on the project. He said most of the money had been earned with the work that has already been done on the project. 8. Complainant stated that Respondent “is sitting on … $50,000” of his money, yet he argued that Respondent was making good progress before the work stopped. Therefore, his statement that Respondent is sitting on $50,000 was untrue. Complainant also admitted that he spoke to Mr. Murray around September 5, 2014, yet he said the reason he did not agree to a new plan going forward (in August 2014) was because communications broke down.[1] In all, Complainant’s testimony was contradictory and often tangential while Mr. Murray’s testimony was more consistent. For this reason, the Administrative Law Judge must place more credibility on Mr. Murray’s testimony and find that the reason Respondent stopped working on the project was because there was no clear agreement on how to proceed with the work once the demolition took place and the subject matter of the contract changed to the point that it was no longer clear what the parties’ duties were. Yet, by Complainant’s statements at hearing, he wanted Respondent to rebuild the demolished building (as opposed to remodeling it as the contract called for) for the same price as quoted in the contract even though it was demolished after the contract was signed. 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)(1) and (22). 3. A.R.S. § 32-1154(A)() provides grounds for suspension or revocation of a contractor’s license for abandonment of a project without a legal reason after submitting a bid. 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. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. 6. In this case, Respondent has acknowledged that no work has been done on the project and that, effectively, it has been abandoned. Concern that Respondent will not be paid was not a legal basis for failing to complete the project. However, Respondent did establish a legal basis for not completing the work in that part of the building that was the basis of the contract, a part that was to be remodeled, has now been demolished and no longer exists, rendering it impossible to perform the contract as written. The greater weight of the evidence has also established that Complainant failed to respond to Respondent’s offer to change the contract so that the parties’ duties could be clarified and the work could proceed. Complainant has not established a violation by Respondent. Because of Complainant’s refusal to cooperate, it appears the only resolution is for Respondent to make a final accounting and return whatever funds have not been used. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be dismissed in its entirety.

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, March 10, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Audio Record at approximately 1:45:00 to 1:47:00.

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