ALJDEC

97F-M1955-ROC · Registrar of Contractors · 1998-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 1998 APPEARANCES: Complainant appeared through one of its owners, Cindy Conant, and Respondent was represented by its attorney, Joseph Winiarski. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Respondent agreed to perform all necessary services to construct a commercial building on Complainant’s property. The work contemplated involved, among other things, surveying the property, site development with plans, architectural drawings, accomplishing all necessary work with the local building authority to approve the construction project, and ultimately to turn over to Complainant a completed building. Complainant alleges a breach of contract by Respondent and this allegation is more fully discussed in the findings below. 2. The following salient facts were adduced at the hearing and are important to note: a. On or about March 1996, the parties named herein entered into the above-described contract. In this regard, Respondent received an initial draw of $12,303.00 from Complainant’s construction loan. This initial draw was to be utilized for all necessary site work, permits, and architect prepared plans and specifications. b. Although Respondent commenced the necessary work on the project, including surveying, site plans, and preparation of architectural drawings, it was undisputed that the local building authority would not allow the contemplated construction on the lot owned by Complainant. c. Upon being apprised that they could not build on their lot, Complainant entered into some form of trade with the owner of the land in said area and basically exchanged their lot for a different parcel of land in the same area. d. On or about January 1997, Complainant presented Respondent with an additional $3,500.00 based on Respondent’s demand that much of the prior work on the original lot would now have to be revised based on the fact that the construction was to take place on a different parcel of land. e. There were “hurdles” to overcome from the local building authority for the contemplated development of the aforementioned new parcel. Although, it was supposed to be the total responsibility of Respondent to meet with the city officials and perform all tasks necessary to accomplish the project, due to Respondent’s lack of diligence in working on the project in an expeditious manner, Complainant was forced to take on a very pro-active role, vis-à-vis the local building authority, in order to overcome the numerous problems in getting this project to move forward in compliance with all requirements of said local building authority. f. It is now almost two full years since the parties entered into the initial contract and no work has commenced on the construction of the desired commercial building. Moreover, although Respondent claims that architectural drawings were prepared, the only thing Complainant has received for her payment of $15,803.00 is a one page site plan. g. As a matter in extreme aggravation, undisputed evidence of record demonstrated a long history of Respondent failing to advise Complainant of the progress, or lack thereof, on the project and moreover, excessive incidents of failing to return Complainant’s phone calls seeking status reports. h. It was adequately demonstrated that through the efforts of Complainant, most, if not all, of the concerns of the local building authority have been resolved and there is currently no reason why the project should not move forward.

3. Complainant is not a licensed contractor and thus, retained Respondent because of the fact that he was a licensed contractor and apparently possessed the necessary experience and skills in order to provide a finished product to Complainant. It was the total responsibility of Respondent to take the project from a concept to the finished building, regardless of the degree of difficulty involved. In this regard, Respondent has failed to perform in accordance with the agreement between the parties. The uncontroverted evidence of record supports a finding that Respondent effectively abandoned the project and moreover, its conduct is deemed to constitute a wrongful act within the meaning of the charged section of the State’s Contracting laws. 4. At this point in time, Complainant is understandably disgusted with the performance of Respondent and wishes to receive a copy of all plans and specifications which should have been completed as part of the money paid to Respondent. Apparently Complainant also claims some degree of monetary damages for Respondent’s failure to perform pursuant to the contract. However, the Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate the amount of damages that Complainant has sustained or what portion of the sums paid to Respondent should be refunded to Complainant. Therefore, any claim for money damages must be resolved through a civil court of competent jurisdiction. 5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent's prior record with the Registrar of Contractors may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding Respondent’s over-all record (on both his commercial and residential license) and said review revealed an excessive number of filed complaints, including numerous complaints that had gone into the hearing process and a number of hearing matters which resulted in imposition of disciplinary sanctions Respondent. Therefore, Respondent's prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7) and (1).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Class B-01 license of Respondent shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent presents Complainant with all plans and specifications prepared for the construction of the building in question on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class B-01 license shall be placed on active suspension for a period of 5 days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of this Order.

Done this day, January 30, 1998.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of __________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826