ALJDEC

98F-0821-ROC · Registrar of Contractors · 1998-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 1998

APPEARANCES: -Becky Ortega on her own behalf. -Elbert Iradee Redmond on behalf of the Respondent.

ADMINISTRATIVE LAW JUDGE: Casey J. Newcomb _____________________________________________________________________

On March 23, 1998, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Becky Ortega appeared on behalf of the Complainant. Elbert Iradee Redmond appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. The Complainant is the owner of a home located at 2632 E. Winston Drive, Phoenix, Arizona (the "Home"). The Complainant is not fluent in English. Lupe Gonzalez interpreted for the Complainant.

2. Elbert Redmond is the owner of El Redmond Construction (the "Respondent"). Mr. Redmond testified that he is not fluent in Spanish. However, Mr. Redmond's wife is fluent in Spanish and was able to communicate with the Complainant when necessary. Until 1996, the Respondent worked on eight or nine projects per year. Health problems have limited his ability to work since 1996.

3. Mr. Redmond testified that the Respondent’s Class B License No. 081173 is currently inactive. However, the Respondent still does construction work in the State of Arizona. The Respondent testified that he does not need a license because he “charges by the hour” for labor only. The Complainant testified that the Respondent misrepresented himself to her as a licensed contractor.

4. The Complainant hired the Respondent to frame the walls and roof for the second level of the Home (the "Project"). The parties did not enter into a written contract. Pursuant to an oral agreement, the Complainant hired the Respondent to provide the labor for the Project. The Complainant provided the materials.

5. Pursuant to the oral agreement, the Respondent charged $65.00 per hour for labor on this Project. This hourly rate covered a crew of five workers. Mr. Redmond testified that he charged a lower rate when he had fewer than five employees working on the Project. Mr. Redmond testified that he had to hire family members and friends as employees when he could not locate carpenters. Mr. Redmond testified that these family members and friends are not "carpenters by trade" but some have "pretty good experience." Mr. Redmond testified that the Project would require about five to six weeks to complete if the materials were provided on a timely basis.

6. On or about July 23, 1997, the Respondent began working on the Project. However, on August 4, 1997, Mr. Redmond was admitted to the hospital to treat his cancer. Mr. Redmond returned to the Project on August 14, 1997.

7. On or about September 19, 1997, the Complainant fired the Respondent after working on the Project for eight weeks. The Complainant testified that Mr. Redmond promised her that the Project would be completed in five to six weeks. The Complainant testified that the Respondent was intentionally working at a slower pace on the Project to run up the labor cost. The Complainant also testified that the Respondent's workers were unqualified and poorly equipped for this Project. The Complainant testified that three of the workers had to share one hammer.

8. The Complainant testified that she paid the Respondent $13,103.00 in cash for his labor. See Complainant's Exhibit #1. The Complainant further testified that she paid $68,328.00 for materials. The Complainant testified that she had to fire the Respondent on September 19, 1997 because the Project was two to three weeks behind schedule. The Complainant testified that she attempted to hire other contractors to complete the job. However, the other contractors refused because the Respondent’s work was too substandard to effectively and safely complete.

9. Mr. Redmond testified that the Project would have been completed on schedule if the Complainant would have provided the materials for the Project on a timely basis. Mr. Redmond testified that there were several days in which the Respondent could not work due to insufficient materials. The Respondent did not charge the Complainant on these days. See Complainant’s Exhibit #1. Mr. Redmond testified that “if you counted all of the days that the Respondent was able to work, the total would be about five to six weeks.” Mr. Redmond testified that the Project “would have been completed in another three days” if the Respondent was not fired.

10. The Complainant testified that the materials were always furnished to the Respondent on a timely basis.

11. On or about October 2, 1997, the Registrar of Contractors (the “ROC”) sent a letter to the Respondent scheduling a jobsite inspection. After the jobsite inspection, ROC Inspector Richard Stuart found that the Respondent’s work did not meet code requirements. See Inspector Stuart’s Notes, page 2.

12. On or about October 23, 1997, the ROC issued a Corrective Work Order to the Respondent ordering the Respondent to correct the framing construction to meet industry and code requirements. The Respondent testified that he completed the corrective work on or about December 15, 1997.

13. On or about December 9, 1997, the ROC filed a Citation and Complaint against the Respondent alleging violations of A.R.S. §32-1154(A).

14. ROC Inspector Richard Stuart is now retired. Cliff Frandsen is now the ROC Inspector for this matter. On or about March 19, 1998, Mr. Frandsen inspected the Home. Mr. Frandsen testified that the Home is not close to being finished. Mr. Frandsen testified that the Home's trusses were not properly tied together and were not straight. Mr. Frandsen further testified that the plywood on the Home's second floor was deteriorating due to weather exposure.

15. Mr. Frandsen testified that the problems with the Home could be corrected without having to tear down the entire Home. Mr. Frandsen conceded that he could not understand all of the Complainant's concerns because of the aforementioned language barrier.

16. The Complainant testified that the Respondent's work did not pass an inspection from the City of Phoenix. However, Mr. Frandsen testified that he saw no "red tags" at the Home. A "red tag" indicates that the Home did not pass an inspection. Mr. Frandsen speculated that the Home probably was not ready to be inspected because the Respondent did not complete the Project.

17. The undersigned Administrative Law Judge finds that the Complainant and the Respondent entered into an oral contract requiring the Respondent to complete the Project in five to six weeks. The undersigned Administrative Law Judge finds that the materials were timely made available for the Respondent to complete this Project within this time frame. The undersigned Administrative Law Judge further finds that the Respondent unreasonably and wrongfully required more than five to six weeks to complete this Project which substantially injured the Complainant.

18. The undersigned Administrative Law Judge finds that the Respondent’s work was not performed in a workmanlike manner. The undersigned Administrative Law Judge finds that the Respondent’s work did not meet industry and code requirements.

19. The undersigned Administrative Law Judge finds that the Respondent failed to take appropriate corrective action within a reasonable amount of time after receiving the ROC’s Corrective Work Order as set forth in Findings of Fact #12.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(3) and R4-9-108 as set forth in Findings of Fact #11, 14 & 18.

3. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(7) as set forth in Findings of Fact #17.

4. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 1154(A)(23) as set forth in Findings of Fact #19.

5. The undersigned Administrative Law Judge finds that that the Respondent’s Class B License Number 081173 should be revoked unless the Respondent complies with the following Recommended Decision.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B License Number 081173 be revoked unless the Respondent complies with the corrective action discussed in the following paragraphs. If the Respondent timely performs the following corrective action, then it is recommended that the Respondent’s Class B license be deemed to be inactive in good standing.

The undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class B license be revoked until the Registrar receives proof that the Respondent has performed the following:

1. The Respondent shall hire (and pay for) a licensed contractor to complete the Project pursuant to the terms of the oral agreement. The Respondent must also reimburse the Complainant for any materials that must be replaced due to the exposure from the weather. The completed Project must meet industry standards and comply with all applicable code requirements. The Complainant must approve of the licensed contractor.

It is further recommended that if the Respondent completes the aforesaid corrective action in a proper and workmanlike manner on or before this Order’s effective date, or if the Respondent is unable to comply with the corrective action because of the Complainant’s unwillingness to grant Respondent’s representatives reasonable and timely access to the Home, then no license revocation shall be imposed and the entire Citation and Complaint in Case Number 98-0821 shall be dismissed and/or closed (and the Respondent’s Class B license shall be deemed to be inactive in good standing).

Done this day, April 2, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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