ALJDEC decisions subject to certification as final

2015A-3378-ROC · Registrar of Contractors · 2016-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2016 APPEARANCES: Nicole Green-Baugher; Dennis Cleary, Respondent’s representative; Frank Grochocki, Registrar of Contractors Investigator; David Olsson and Zoe Gerovac, observers ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. Complainant hired Respondent to install a gate at her home. When Respondent failed to install the gate, she filed a complaint with the Registrar of Contractors. 2. At the hearing, the Registrar of Contractors Investigator testified that he conducted a job site inspection on November 12, 2015 and, finding that the gate had not been installed, issued a Directive from the Registrar that day instructing Respondent to compete the installation and to correct an uneven, bent piece of sheet metal that had a screw missing. He said he did not conduct a pre-hearing inspection because no work had been done by Respondent. He acknowledged that Complainant did not want Respondent back on the premises and that another gate had already been installed next to where the original gate was supposed to be. 3. Complainant testified that she paid Respondent a down payment on April 15, 2015 to Respondent in the amount of $1,500.00, yet by May 20, 2015, no work had been done. She stated that on June 2, 2015, someone showed up at her home without notice and drilled some holes, but as of July 24, 2015, Respondent still had not installed the gate. The contract between the parties stated that the work would be completed within 90 days. Complainant stated that she requested her deposit back and Respondent refused. She said she had to pay $250.00 to have Respondent served. She stated that she finally had someone else install the gate seven months after she contracted with Respondent. 4. Respondent admitted that he did not complete the job prior to the complaint, which was dated August 7, 2015. He argued that Complainant did not allow him to complete the job after the Directive from the Registrar was issued on November 12, 2015. He also said the reason the gate was not completed sooner was in part due to monsoons. 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 issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(1), (3) (namely A.A.C. R4-9-108), and (22). 3. A.R.S. § 32-1154(A)(1) provides grounds for abandonment of a contract or refusal to perform on the contract without a legal excuse for doing so. 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. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. As of the time of this recommendation, Respondent’s license was in good standing. 7. In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(1) by failing to complete the installation of the gate as contracted for without a valid legal excuse. Respondent’s claim that he was delayed in part by monsoons was not a valid legal excuse because not only did Respondent fail to establish that it rained so much that it could have interfered with his work for the full 90 days envisioned by Respondent’s own contract, but Respondent also failed to offer any legal or factual basis for finding that the gate could not be installed in the rain. Because Respondent did not complete the work, it would not be appropriate to find that Respondent violated A.R.S. § 32-1154(A)(3) because Respondent did not do enough work to judge the workmanship and uncompleted work should not be expected to meet workmanship standards. Complainant did not establish a violation of A.R.S. § 32-1154(A)(22) because Respondent’s opportunity to complete the work had passed by the time Complainant had another contractor install the fence. 8. Respondent did not dispute that Respondent refused to return Complainant’s deposit. This should be considered a factor in aggravation when determining the appropriate disciplinary action. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that, commencing on the date that the order in this matter becomes final, Respondent’s license (No. 267373) be suspended for 30 days.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be 5 days from the date of certification.

Done this day, April 15, 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