ALJDEC decisions subject to certification as final

2017A-3446-ROC · Registrar of Contractors · 2017-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Yarnell Community Center,

COMPLAINANT,

v.

Vito Frederick Austin

DBA: Vito's Construction,

License No. KB-2.229267-D,

RESPONDENT.

No. 2017A-3446-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2017, at 8:30 a.m.

APPEARANCES: Yarnell Community Center (“Complainant”) appeared through Kim Lytle, its Executive Director, and Michelle Jacobson, its Board President; Vito Frederick Austin DBA: Vito’s Construction (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

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FINDINGS OF FACT

Background and Procedure

According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on February 15, 2007, the Registrar issued License No. KB-2.229267-D for dual residential and small commercial contracting to Respondent.

On or about July 6, 2017, Ms. Lytle on behalf of Complainant filed a complaint with the Registrar against Respondent, alleging that Respondent had contracted to perform electrical work at the Yarnell Community Center at 22302 S. State Route 89 in Yarnell, Arizona 85362, had abandoned the project after being paid $682.00, and had actually performed electrical work on the job, even though such work was beyond the scope of his KB-2 license.

On August 1, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to discipline the license under A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(16).

Respondent filed a timely written answer to the Citation, acknowledging that he had contracted to perform electrical work at the community center, but stating that he subcontracted the electrical work to Nicholas Hawkins, an associate, and that although he had offered to perform additional work to allow the project to pass the Fire Marshal’s inspection, Complainant elected to hire someone else to perform the work.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on October 20, 2018. Complainant submitted two exhibits and presented the testimony of two witnesses: (1) Kim Lytle, its Executive Director; and (2) Michelle Jacobson, its President. Respondent submitted one exhibit and testified on his own behalf.

Hearing Evidence

Complainant is a non-profit community organization that operates a kitchen that provides meals-on-wheels and operates a dining room to provide approximately 600 meals per month to clients, who are mostly senior citizens in the area.

In 2016, Complainant was informed that the fire suppression system in its kitchen would need to be updated for it to be able to continue providing meals to the public. Complainant hired Service 1st Fire Protection LLC, License No. CR16.216491-D (“Service 1st”) to update the fire suppression system in Complainant’s kitchen.

Service 1st informed Complainant that the kitchen also needed electrical upgrades to pass the Fire Marshal’s inspection, but that it could not perform electrical work under its license.

At that time, Respondent sat on Complainant’s board of directors. Respondent offered to serve as the general contractor for the electrical upgrades project.

On or about January 19, 2017, Respondent provide an invoice for $682.00 to Complainant for certain electrical components, one apprentice for 3 hours, and one journeyman for five hours, for a total of $682.00. The invoice stated that Respondent as “[d]onating $500 of journeyman labor.” Complainant paid Respondent $682.00 by check.

Respondent and Complainant’s agreement for the electrical work was not memorialized by a written contract.

Respondent testified that he subcontracted the electrical work to his son. Respondent submitted an invoice dated January 7, 2017, from Nicholas Courson Hawkins DBA: Nicholas Electric, License No. CR11.234403-D for dual electrical contracting in the amount of $682.00 for “[c]hange out receptacle, switch, and contact to existing Anvil system.” Respondent also submitted Nicholas Hawkins’ statement that he was contacted by Respondent “to do some electrical work at the Yarnell Community Center” and that he had been paid $682.00 for the job.

Respondent testified that he and Mr. Hawkins did the work after hours, when no one else was around. Respondent testified that Complainant gave him a key and the alarm code.

Ms. Robinson denied that Complainant gave Respondent the key or the alarm code. Ms. Robinson agreed Respondent had performed work after hours, but denied that she ever say Mr. Hawkins at the jobsite. Ms. Robinson acknowledged that she was not at the job the whole time it was being performed.

After Respondent upgraded the electrical system, Complainant scheduled an inspection by the Fire Marshall. Respondent’s electrical upgrades failed the inspection.

Respondent informed Complainant that additional work was necessary to have the electrical components of the fire suppression system pass inspection, but that the additional work would cost additional money. Complainant rejected Respondent’s offer to perform additional electrical work for additional compensation.

Complainant hired P D Q Systems Inc. DBA: C P R Electric, License Nos. C-11.084708-C and R-11.255575-R (“CPR”) to perform the additional electrical upgrades that the Fire Marshall required. CPR charged Complainant $1,015.00 for this work.

The Fire Marshal passed CPR’s additional electrical work on the upgrades to Complainant’s kitchen. Complainant had to pay the Fire Marshall an additional $480.00 for the second inspection.

Complainant’s witnesses stated that they did not want the Registrar to suspend or revoke Respondent’s contractor’s license and that they did not seek an award of damages to compensate them for the cost of hiring CPR to complete the electrical upgrades to pass the Fire Marshall’s inspection. Instead, Complainant’s witnesses requested that the Registrar find that Respondent had contracted beyond the scope of its license by performing electrical work and maintain the violation on the Registrar’s public website as a warning to consumers who might otherwise enter into contracts with Respondent.

CONCLUSIONS OF LAW

Even if Respondent paid Nicholas Electric all the money it received from Complainant, because it did receive compensation for the project, Respondent acted as a contractor as defined in applicable statute. This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

The amount of Respondent’s initial contract apparently was only $682.00. A written contract that set forth a detailed scope of work and any contingencies that might increase the scope of work would have been advisable because it likely would have avoided this dispute. Because the amount of the parties’ contract was not $1,000.00 or more, however, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158(B).

Complainant established that Respondent contracted to perform electrical work, which is a protected trade that is beyond the scope of Respondent’s general contracting license. Respondent established that it subcontracted the electrical work to Nicholas Electric, which was properly licensed to perform this scope of work. Therefore, Complainant did not establish case to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(16).

The record does not contain the scope of work that Respondent initially undertook because, unfortunately, he did not prepare a written contract. After Respondent’s original work failed the Fire Marshal’s inspection, Complainant hired CPR to complete the electrical work that was needed to pass the Fire Marshal’s inspection. Because Respondent established that he was not asked or allowed to complete the project, Complainant did not establish that Respondent abandoned the project. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(1).

Because Respondent undertook contracting work without informing Complainant in writing of the scope of the work and Respondent’s work subsequently failed inspection, Complainant potentially established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. As noted above, however, Complainant hired CPR to complete the necessary scope of work to pass the Fire Marshal’s inspection. Because CPR modified Respondent’s work, the Administrative Law Judge cannot recommend that the Registrar suspend or revoke Respondent’s license for any violation of the Registrar’s workmanship standards under A.R.S. § 32-1155(C)(2).

The record in this matter does not establish that Respondent’s contracting work was flawless or above reproach. Because A.R.S. § 32-1154(A) only authorizes the Registrar to suspend or revoke a contractor’s license after certain enumerated specific misconduct has been proven, however, Complainant has not established that it is entitled to any relief in this administrative forum.

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RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Yarnell Community Center’s complaint in Case No. 2017-3446 against Respondent Vito Frederick Austin DBA: Vito’s Construction’s License No. KB-2.229267-D shall be dismissed.

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 five days from the date of that certification.

Done this day, October 24, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors