ALJDEC

98F-H0182-ROC · Registrar of Contractors · 1998-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 1998 (Kingman, Arizona)

APPEARANCES: Complainants appeared on their own behalf; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns Respondent David Albers Construction’s partial building of a house for Complainants Gary and RaeLynne Williams in Kingman, Arizona. Complainants submitted documents and photographs into evidence at the hearing and provided testimony and witnesses. As noted above, Respondent was not present at the hearing. Therefore, Complainants’ evidence went uncontested. Furthermore, two days before the hearing, Respondent faxed a handwritten request for a continuance to this ALJ, who was in Kingman for the week to conduct hearings. The request stated that Respondent was “out of town,” but provided no details as to the circumstances. This ALJ summarily denied the request because it did not present good cause and was filed at the last minute. Respondent had received notification of the hearing two months earlier. Based on the evidence and testimony at the hearing, this Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent in violation of the ROC statutes and recommending revocation: FINDINGS OF FACT 1. Respondent has been an Arizona general residential contractor since November 1996. In August 1997, Complainants and Respondent entered into a written contract for the construction of a house. The evidence does not contain a copy of that contract because Respondent had the original and has never given it or a copy of it to anyone else. Complainants made numerous attempts to get a copy of the contract, but Respondent never delivered, always having some sort of excuse. Thus, Complainants testified about the terms of the contract from their recollection. Also, Exhibit 15 supports Complainants’ testimony as to the nature of the contract. Under the contract, Respondent was to provide labor and purchase materials. Respondent was paid a set price for the labor. Complainants were required to reimburse Respondent for the materials at his cost as soon as he ordered or purchased them. Exhibit 15 contains numerous invoices from material suppliers to Respondent, along with corresponding checks from Complainants made out to Respondent. 2. The evidence shows that Respondent did most of the work on the house himself. Respondent worked on the house until February 1998. Presently, the house remains unfinished and he has not worked on it since. The house has stood for one year without stucco on it. The lath and paper have been exposed to the elements the entire time and are now deteriorating to the point of becoming unsalvageable. 3. Moreover, the work that Respondent did is clearly substandard. First, Respondent did the majority of the electrical and plumbing work, which he is not authorized to do under a Class B license. See, Arizona Administrative Code (A.A.C.) R4-9-103. To make matters worse, Complainants introduced evidence showing that Respondent had been criminally convicted in November 1996 for contracting without a license. 4. Second, ROC Inspector Jim Boyett issued two separate Corrective Work Orders (CWO) to Respondent in February and March 1998, ordering Respondent to repair many items. There is no evidence that Respondent made any attempt to comply with those CWOs. 5. Third, based on Inspector Boyett’s observations at the site and testimony at the hearing, along with the photographic exhibits and the testimony of other tradesmen, there are numerous components of Complainants’ house that exhibit substandard workmanship. Complainants' Exhibit 11 is a complete list of the items that are substandard, and is hereby incorporated by reference into this Recommended Decision. Generally, those items are: improper roof framing that causes visible humps in the roof; uneven shingles; poor patio and carport posts; soffits very poorly constructed (Exhibit 12); lath and vapor barrier paper poorly hung and so deteriorated that they require replacement (Exhibits 3-7); many walls out of are plumb such that cabinets had to be modified to fit and an extremely odd shaped bookcase was constructed to cover up a mistake (one wall is 1¼ inches out of plumb); sliding glass doors and windows that are not square or plumb and do not work; door thresholds that are not properly installed; poor drywall corner beads, joints, and finish; terrible door trim; and exhaust fans that do not have an exhaust pipe. All in all, Complainants’ unfinished house is very poorly constructed and falls way below minimum workmanship standards. 6. Finally, the house does not conform to the blueprints in several areas. Complainants were not aware of this until after the work had been done, and so they did not consent to those modifications. CONCLUSIONS OF LAW 1.Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met their burden. 2. The evidence clearly shows that Respondent has violated A.R.S. § 32-1154(A)(1), abandonment of a contract, by failing to finish Complainants’ house under the terms of the contract. 3. The evidence clearly shows that Respondent has violated A.R.S. § 32-1154(A)(17), knowingly contracting beyond the scope of his license, by performing the electrical and plumbing work himself. 4. The evidence overwhelmingly shows that Respondent has violated A.R.S. § 32-1154(A)(7), (23), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, by so poorly constructing various portions of Complainants’ house. 5. The record contains several factors in aggravation. First, the amount and severity of poor quality work performed by Respondent is appalling. Next, Respondent made absolutely no effort to comply with the CWOs. Third, Respondent abandoned Complainants, leaving them with an unfinished home exposed to the elements, causing severe harm to them. Finally, Respondent had previously been criminally convicted for contracting without a license in Kingman Justice Court, yet still went beyond the scope of his license. 6. The aggravating factors support a revocation of Respondent’s license. . . . RECOMMENDED ORDER Considering the findings and conclusions above, IT IS RECOMMENDED that License No. 118446, Class B, issued to David Leroy Albers dba David Albers Construction, be revoked.

Done this 4th day of December 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 1998, to:

Michael P. Goldwater, Director ATTN: Joyce Armijo Registrar of Contractors 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