ALJDEC decisions subject to certification as final

2015A-4355-ROC · Registrar of Contractors · 2016-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2016 APPEARANCES: Tim Polanco (Complainant) appeared on his own behalf. Desert Radiant Barrier LLC dba Premier Luxury Homes (Respondent) was represented by its owner, qualifying party and authorized representative, Michael Wiebe (Wiebe). ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) first issued License No. 213755 to Respondent on November 16, 2005. This license was class B for General Residential Contractor. That license was suspended for nonrenewal on December 1, 2011 and expired on December 1, 2012.[1] The Registrar first issued License No. 224993 to Respondent on September 24, 2006. This license was class R37R for Plumbing. That license was suspended for nonrenewal on October 1, 2012 and expired on October 1, 2013. The Registrar first issued License No. 228117 to Respondent on December 29, 2006. This license was class R-11 for Electrical. That license was suspended for nonrenewal on January 1, 2015 and expired on January 1, 2016. The Registrar received a Complaint against Respondent from Complainant alleging that Respondent failed to provide him “plans and engineering” along with permits for a room addition as provided for in a contract dated September 30, 2014. The Complaint alleged that the Respondent had contracted to build Complainant a room addition for the sum of $52,096.00 and that the parties’ contract contained a $2,350.00 line item for “plans and engineering” as well as a line item for $950.00 for permits. Complainant paid Respondent a $3,300.00 deposit for the engineered plans and permits and expected that Respondent would move forward with the plains as quickly as possible. After Complainant did not hear from Respondent for three or four months, he contacted Respondent and requested a copy of the plains. Respondent faxed over a copy of plans for a different residence. See Exhibit 1. Within a couple of days, Respondent faxed over plans for Complainant’s addition. See Exhibit 2. Complainant was dissatisfied with these plans because they did not appear different than the ideas Complainant had drawn for Respondent except for the inclusion of some scribbled lines for electrical. The plans had no engineering stamp and appeared to Complainant as if Respondent had simply spent ten minutes on the plans after Complainant called to inquire and reminded Respondent where he lived. Complainant called off the room addition and told Respondent to cease work at that point. Respondent refunded $900.00 of the permit monies as permits had not yet been pulled for the room addition, but refused to refund the remaining $2,400.00 because he had delivered the plans contained in Exhibit to Complainant. At the urging of his friend who had recommended Respondent, Complainant filed the Complaint referenced above. The Registrar assigned investigator Timothy Pennington to investigate the Complaint. Pennington testified that he arranged to perform an inspection on November 25, 2015, and notified Complainant and Respondent of the time and place of the inspection. Respondent did not attend the inspection. At the time of the inspection, Pennington reviewed both Exhibits 1 and 2 and determined that the plans were either not accurate or had no engineering as called for by the parties’ contract. On November 25, 2015, Pennington issued Respondent a Directive from the Registrar. The Directive stated in pertinent part: 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:

1. Abandonment of contract

Your license R-11.228117-R is suspended[;] you may not contract in any manner, but may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

Correct by the appropriate means.

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

The Directive provided for written proof of compliance from Respondent by 5:00 pm. on December 16, 2015. Respondent called Complainant during the time for compliance with the Directive, but only to indicate that he had provided Complainant plans and so intended to retain the $2,400.00. Pennington telephoned Complainant after expiration of the time specified in the Directive and confirmed that the parties had not reached a financial settlement. Pennington subsequently forwarded the file to the Registrar’s legal department for review. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) (abandonment) and A.R.S. § 32- 1154(A)(22) (failure to comply with a directive). Respondent filed a timely written answer to the Citation denying abandonment of the project and asserting that he had provided Complainant the requisite plans. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. At hearing, Complainant and Pennington testified consistently with the facts detailed above. Wiebe testified that he had drafted plans for Complainant and also had engineered plans in process for the trusses and sprinkles when Complainant cancelled the project. He acknowledged that he did not provided Complainant a copy of the engineered plans because Respondent would have had to pay the companies that drew them up a total of $1,600.00 for the plans if those companies were not awarded the work associated with those plans. He denied that Respondent abandoned the project, nothing that in his experience it takes six months to have plans approved and permits pulled by the City of Peoria, but admitted Respondent did not comply with the Directive. Pennington testified that he was unaware of trusses companies charging for engineered plans, but said he had no experience with sprinkler companies. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Respondent’s expired licenses does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 4. Complainant bears the burden of proof to establish Respondent’s statutory violation 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). 5. Complainant established 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).[2] The evidence showed that Respondent failed to contact Complainant for three months regarding the plans and then produced inadequate and incomplete plans that were not engineered. Respondent admitted that it did not give Complainant the engineered plans because doing so would have cost Wiebe money. The Tribunal finds that the Respondent was obligated to use Complainant’s deposit to ensure he received all the plans he paid for. Respondent was also responsible for communicating with Complainant to ensure he understood the timeframe for a project within the city of Peoria. 6. An A.R.S. § 32-1154(A)(22)[3] violation is also warranted given Respondent’s utter failure to take any steps to reach an agreement with Complainant to resolve this matter by financial settlement or by obtaining a complete set of plans. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent License Nos. 228117, 213755 and 224993. 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, May 6, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of Respondent’s licensing history, available on the Registrar’s website and reviewed on April 21, 2016. [2] 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.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” Emphasis added.

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