ALJDEC decisions subject to certification as final

2016A-599-ROC · Registrar of Contractors · 2016-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Micela Properties Inc,

COMPLAINANT,

v.

Goodall Wood Creations, LLC,

License No: 189432

RESPONDENT.

No. 2016A-599-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 29 and September 9, 2016

APPEARANCES: On July 29th, John Marcolini, Complainant’s attorney; Luigi Micela, Complainant’s representative; Joe Anthony, Respondent’s attorney; Kenneth Goodall, Respondent’s representative; Beau Cruz, Registrar of Contractors Investigator

On September 9th, John Marcolini, Complainant’s attorney; Luigi Micela, Complainant’s representative; Joe Anthony, Respondent’s attorney; Kenneth and Shannon Goodall, Respondent’s representatives; Beau Cruz, Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony in this matter and having considered the evidence, the undersigned Administrative Law Judge finds that Complainant did not establish a violation by Respondent in this matter and that Complainant’s complaint should be dismissed in its entirety.

FINDINGS OF FACT

Complainant was the general contractor in the construction of a home. On September 14, 2015, Complainant hired Respondent to do some custom cabinetry for the home. The contract between the parties clarified in a handwritten note that it would be eight weeks until the start of delivery of the cabinets to the home. Clearly, because the cabinets would obviously have to be installed, which would take more time, this meant that the cabinets would NOT be finished in eight weeks. Unfortunately, Mr. Micela was clearly unable or unwilling to understand this very clear clause throughout the entire complaint process and insisted that Respondent had agreed to complete the first phase of the project within 8 weeks, an attitude that he insisted on maintaining as he harassed Respondent despite the fact that he could have simply looked at the contract to confirm at any time. Rather, Mr. Micela sent many harassing and irrational emails to Respondent demanding immediate attention and making unfair demands on Respondent. Complainant continually harassed Respondent until Respondent agreed to another time schedule, which was not reasonable and clearly not entered into free from undue harassment. Because of the abusive nature of that agreement, it should be given no legal effect.

Complainant filed a complaint with the Registrar of Contractors against Respondent and a Registrar of Contractors Investigator issued a Directive from the Registrar on some workmanship issues, most of which involved simply finishing the project. However, because Complainant would not allow Respondent to correct those issues, the Registrar of Contractors issued no citation for failure to correct the work. Complainant alleged that Respondent damaged some of the cabinets, but the Registrar of Contractors Investigator testified that he was unable to confirm this allegation because he saw other trades damaging the cabinets during his inspection. Therefore, Respondent was not found to be liable for the damage.

While there was work that required correction, it was not disputed that the job was unfinished and Complainant did not allow Respondent to come back to the jobsite to complete it. Complainant then alleged in his complaint that Respondent abandoned the project, which was clearly untrue, as shown by Respondent’s numerous communications throughout the relationship. The Registrar of Contractors declined to include abandonment as a possible violation in its citation.

In Complainant’s closing statement, Complainant’s attorney requested restitution in the amount of $33,000 for the costs of completing the project. Complainant paid Respondent $132,000 and refused to pay any more even though Respondent continued working on the project. If Complainant did pay $33,000 to complete the project, Complainant paid a total of $165,000 for a project that was originally valued at $333,000.

CONCLUSIONS OF LAW

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.

The Citation issued by the Registrar of Contractors in this matter alleged a potential violation of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108).

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”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108.

In this case, Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(3) because the project for which Respondent was hired was not completed and Complainant’s outrageous behavior interfered with the completion of the project. Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. Because Respondent’s project was stopped so early in the process, it would not be appropriate to find that any of his work was a violation, especially considering the irrational approach by Complainant in immediately flooding Respondent with aggressive demands for an inordinate amount of attention based on Mr. Micela’s own misreading of the contract. It was clear from the evidence that Mr. Micela wasted a lot of Respondent’s time with undue and unfair harassment and unreasonable demands. It was in this manner that Mr. Micela prevented Respondent from completing his work under reasonable conditions. Because the project was unfinished due to Mr. Micela’s own interference and ultimate denial of access, and because Respondent should have had a reasonable opportunity to perform his work without harassment, the complaint in this matter should be dismissed.

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, September 29, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors