ALJDEC decisions subject to certification as final

2015A-5282-ROC · Registrar of Contractors · 2016-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2016 APPEARANCES: Richard and Sandy Nadzieja, Complainants; Donald Tellefsen, Respondent’s representative; Tim Pennington, Registrar of Contractors Investigator; Kevin Gue, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against Respondent, Complainants were unable to establish a violation of the Registrar of Contractors standards. Emails between the parties established that Respondent was willing to return and complete his contract, but, although it was clear that Mr. Nadzieja had threatened Respondent, Complainants would not agree to make arrangements for Respondent to come to the home and work in safety. Therefore, it must be recommended that this complaint be dismissed. FINDINGS OF FACT 1. Complainants hired Kevin Gue as the general contractor to build their home. Respondent was a painting subcontractor. After Respondent did some painting at the home, Complainants filed a complaint regarding his work with the Registrar of Contractors. The complaint was filed on December 29, 2015. It states that Respondent’s work was substandard in a number of different ways, that Respondent had been argumentative, profane, and unwilling to discuss possible remedies. 2. By February 16, 2016, the date of the job site inspection, Complainant had hired another painting contractor who had completed the work. Registrar of Contractors Investigator Tim Pennington was unable to determine whether there had been any violation of the Registrar of Contractors standards. However, he set the matter for hearing to allow Complainants the opportunity to establish their case. 3. Complainants offered testimony alleging that they were in town over Thanksgiving and wanted Respondent to meet with them but he refused because it was a holiday, used profanity and hung up. They alleged that he had abandoned the job and they had had to hire someone else to complete the work for twice the price. 4. Respondent testified that he acknowledged that the paint needed touchups. However, he said, Mr. Nadzieja threatened him and he had to call the sheriff to report it. He stated that he sent three certified letters saying that he was willing to complete the job, just not with Mr. Nadzieja there because of his threats. The file also has copies of several emails in which Respondent stated that he would complete the job so long as Mr. Nadzieja was not there. Emails from Complainants make it clear that they were not willing to allow this. 5. Veiled threats against Respondent by Mr. Nadzieja during the hearing confirmed the veracity of Respondent’s testimony. 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 a potential violation of A.R.S. § 32-1154(A)(1), abandonment of a contract without legal excuse. 3. In this case, Complainants have not established a violation by Respondent. Communication from Respondent clearly stated that he was willing to complete the work and it is not reasonable to require him to do so while a homeowner that has threatened him insists on remaining on the property as he tries to complete his work. 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, May 24, 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