ALJDEC
98F-T0523-ROC · Registrar of Contractors · 1998-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
| |(| | |DOROTHY A. RHODES, |(|Case No.: T98-0523 | | |(| | |Complainant, |(|Docket No.: 98F-T0523-ROC | | |(| | |vs. |(| | | |(|Recommended | |License No. 119347, Class B of |(|Decision and Order | |BALE M BUILDERS, INC., (CORP), |(| | | |(| | |Respondent. |(| | | |(| | | |(| |
HEARING: August 11, 1998; at 9:00 a.m. Appearances: The Complainant, Dorothy A. Rhodes, was present and represented by Gary W. Ramaeker, attorney-at-law. The Respondent appeared through its Qualifying Party, Alan Lipman. Administrative Law Judge: Grant Winston
This matter was brought on for administrative hearing on Tuesday, August 11, 1998, at 9:00 a.m. Testimonies were taken and other evidence admitted and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law and Recommended Order are made.
FINDINGS OF FACTS
1. The Respondent herein is, and at all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License Number 119347.
2. The Complainant herein, Dorothy A. Rhodes, contracted with the Respondent on May 28, 1997, whereby the latter was to construct a residence for the former. The residence was of a rather unusual design forasmuch as one of its major design components was to have been straw bales. The contract’s price term was $135,000.00. The parties also had drafted and signed a document entitled “Cost Estimate” on May 15, 1997. That document contained a total cost estimate of $165,043.00. As the estimate’s cost conflicts with the cost contained in the contract itself, it is found that the contract itself controls, and the price term was $135,000.00. However, the “Cost Estimate” does establish a separate agreement between the parties as to what aspects of the construction would be performed by Respondent, as general contractor, and what aspects the Respondent would subcontract. It is further found that it was incorporated into and made a part of the contract as an addendum thereto by dint of Article 7.1 of the contract.
3. Work could not commence immediately upon execution of the contract, as the parties had to wait for the financing to clear and monies to become available. Construction began sometime early in July of 1997. Although much of Respondent’s asserted defense to the Complainant’s complaints of his poor workmanship were unavoidable delays, it is found that the defects in Respondent’s workmanship began to be produced by him nearly as soon as the construction began. Additionally, it is found that much of the so-called delays Respondent mentioned were delays for which he, as the general contractor, should be held responsible. These were his delays in obtaining, or his inability to obtain, the needful construction supplies he had contracted to obtain. He further claims Complainant had threatened to call the sheriff if ever the Respondent’s President, Scott Martin, or himself returned to her property. The evidence only shows that the Complainant gave such advice as to Mr. Martin, and only after he behaved crudely and offensively toward her while on her property. She never had any problem with Respondent or any of the several subcontractors or workers presenting themselves on her property. He also asserts that Complainant made numerous changes in the plans, but this is not credible, and other credible evidence proved that not to be the case.
4. Eventually, owing to the poor workmanship and unprofessional conduct of the Respondent, as well as his claim of not possessing funds sufficient to complete the project, the parties felt it necessary to mutually rescind the contract at a time when the construction was not nearly completed. A written document entitled “Termination of Contract” was entered into between the parties on January 22, 1998, a time later than when the contract had called for the construction to have been substantially completed. According to the termination agreement, Respondent expressly warranted his workmanship of the roof and framing for five years henceforward, and expressly agreed to abide by the Arizona Registrar of Contractors laws relative to the construction work he had performed up to that time. Respondent further agreed in the Termination Agreement to restore the condition of the residence to its original, pre-construction state.
5. Complainant, in a timely manner, attempted to have the Respondent correct the numerous deficiencies in his construction workmanship, including deviations from the plan’s calls, to no avail. Respondent had ample opportunity to make corrections. She filed the instant complaint with the Registrar of Contractors on January 27, 1998. A job-site inspection was conducted by Registrar of Contractors’ Inspector James B. Morris, on February 27, 1998. Present then were the Complainant and the Complainant’s architect, Mr. Brian Lockhart, and the Respondent, although he arrived late. Also present, for a time, was one of the Respondent’s partners, although he was invited to leave during the inspection due to his choice of unacceptable language. Mr. Morris issued a lengthy Corrective Work Order on March 4, 1998, ordering Respondent to correct thirty-two items within fifteen days. A subsequent job-site inspection by Mr. Morris resulted in a second Corrective Work Order dated April 7, 1998, and it also ordered Respondent to correct several items within fifteen days. Respondent never attempted to correct, and to date, Respondent has not corrected, one single item listed in either Corrective Work Order. All items listed by the Inspector on both Corrective Work Orders were proven and verified as items of poor workmanship in need of correction.
6. Complainant was therefore compelled to contract with third parties, first to correct the deficiencies left by Respondent, then to complete the construction. One of Complainant’s new contractors started working on the project in August of 1998. Complainant is going to incur additional expenses, necessary for the correction and completion of her residence, work which should have been properly done by the Respondent under terms of the contract, in the sum of $67,420.00. (Complainant is having to pay $31,640.00 to correct the poor workmanship of Respondent; then $19,780 to substantially complete the house, then $16,000.00 to finally complete.).
7. Respondent’s Class B License Number 119347, the license that is the subject of this complaint, was suspended by the Registrar on February 12, 1998, for lack of bond. It is currently suspended for same.
8. Notice is taken of the Respondent’s prior license record wit the Registrar.
Conclusions of Law
1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.
2. The respondent herein is charged with possible violations of A.R.S. §32-1154.A.1., 7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).
3. The preponderance of evidence of record leads to the conclusion that Respondent did violate A.R.S. §32-1154.A.1.,7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship), as set forth in the Citation and Complaint.
Recommended Order
Wherefore, it is hereby recommended that Respondent’s Class B License Number 119347 be revoked.
It is further recommended that in addition to the above-provided penalty, Respondent pay the sum of $500.00 to the agency by way of civil penalty pursuant to A.R.S. §32-1154.D., and that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S.
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§32-1101.A.3., unless and until payment of any outstanding civil penalty is tendered.
Dated this 13th day of August, 1998.
OFFICE OF ADMINISTRATIVE HEARINGS
_________________________________ Grant Winston Administrative Law Judge
Original mailed this day of August, 1998, to:
Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007
Transmitted by:
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