ALJDEC

99F-1598-ROC · Registrar of Contractors · 1999-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On May 24, 1999, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Sam S. Torpisch appeared on his own behalf. Attorney David R. Jordan represented 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. In February of 1998, the Complainant and the Respondent entered into a written contract for the Respondent to construct a home for the Complainant. See Respondent’s Exhibit 1, page 2. The home is located at 9544 W. Sunnyslope Lane, Peoria, Arizona (the “Home”). On or about June of 1998, the Complainant moved into the Home. Id.

2. The Complainant subsequently submitted a 10 day repair notification form to the Respondent to correct routine warranty items at the Home. The Complainant also submitted a 30 and 90 day repair notification form to the Respondent to repair additional routine warranty items. See Complainant’s Exhibits B & C.

3. The Complainant is a truck driver who is frequently on the road. The Complainant testified that he is on the road more days than he is at the Home. Accordingly, it was difficult to schedule days (when the Complainant was at the Home) for the Respondent to correct the items in the repair notifications.

4. Darren McNamara is the Respondent’s Customer Service Representative. Mr. McNamara testified that it was difficult to schedule meetings with the Complainant to perform the warranty repair work because the Complainant was frequently out of town. However, Mr. McNamara testified that he was finally able to schedule a meeting date for the warranty work to began. Unfortunately, the Complainant failed to appear at the appointed time.

5. Mr. McNamara testified that he set up a second meeting with the Complainant for September 15, 1998 at the Home. The Complainant was present for this meeting. Mr. McNamara testified that the Complainant started to scream and verbally abuse him. Mr. McNamara testified that he told the Complainant that he would be leaving because of the Complainant’s abusive behavior. Mr. McNamara testified that the Complainant kicked him on the back of the knee as he departed from the Home. Mr. McNamara testified that the Complainant’s kick caused a bruise on the back of his leg.

6. The Complainant testified that he never kicked Mr. McNamara on the leg. The Complainant testified that he only slammed the door behind Mr. McNamara. The Complainant conceded that the door may have hit Mr. McNamara on the back of the leg.

7. On or about September 16, 1998, Mr. McNamara obtained an Injunction Against Harassment against the Complainant in the Scottsdale Justice Court. See Respondent’s Exhibit 6. This Injunction document was personally served upon the Complainant. The Complainant did not contest the Injunction Against Harassment.

8. Mr. McNamara further testified that he filed a civil lawsuit against the Complainant in Maricopa County Superior Court on or about September 18, 1998. This matter was settled prior to trial. Mr. McNamara testified that he received $1,500.00 from the Complainant’s insurance carrier. Mr. McNamara testified he will never return to the Complainant’s Home because of concerns for his safety.

9. Mr. Greg Hancock is the Respondent’s president. Mr. Hancock testified that he visited one of his sales offices in May of 1998. Mr. Hancock testified that Ms. Shannon Whitehead worked at this sales office. Mr. Hancock testified that Ms. Whitehead was trembling and in tears during his visit in May of 1998. Mr. Hancock testified that he learned from Ms. Whitehead that she was upset about an impending encounter with the Complainant. Mr. Hancock testified that Ms. Whitehead was tired of dealing with the Complainant. Mr. Hancock left the office lobby area when the Complainant arrived for the meeting with Shannon Whitehead.

10. Mr. Hancock testified that Ms. Whitehead summoned him back to the office lobby area because the Complainant was verbally abusing her. Mr. Hancock testified that he and the Complainant had a heated exchange about the appropriate way to treat his employees. Mr. Hancock testified that he ultimately hired a security guard for the sales office lobby to ensure the safety of his employees. Mr. Hancock also contacted his attorney regarding the Complainant’s abusive behavior. Mr. Hancock’s attorney wrote a letter to the Complainant instructing the Complainant to direct all future communications concerning the Respondent to the law firm. See Respondent’s Exhibit 2.

11. Mr. Hancock testified that he paid the fees and costs for the Injunction Against Harassment obtained by Mr. McNamara against the Complainant. Mr. Hancock testified that he also paid the fees and costs for Mr. McNamara’s civil lawsuit against the Complainant. Mr. Hancock testified that he further learned that another employee, Mark Bowlin, had been assaulted by the Complainant on August 11, 1998. Mr. Hancock testified that he also paid the fees and costs for Mr. Bowlin’s Injunction Against Harassment and civil lawsuit against the Complainant.

12. Mr. Hancock testified that he ordered that no additional warranty work would be performed at the Complainant’s Home. Mr. Hancock testified that he would not place another employee in harm’s way at the Complainant’s Home. Mr. Hancock further testified that he would undoubtedly be sued if another employee was assaulted at the Complainant’s Home (especially considering that the Respondent was already on notice that three other employees had been verbally abused or physically assaulted by the Complainant).

13. Mr. Hancock testified that the warranty work at the Complainant’s Home was routine punchlist items. However, Mr. Hancock testified that he was willing to lose his license (and incur ample legal fees and costs) to protect his employees from the Complainant. Mr. Hancock testified that the Complainant would have had his warranty work done by now if he had not abused and assaulted the Respondent’s employees.

14. On or about November of 1998, the Complainant filed a Complaint with the Registrar of Contractors (the “ROC”). On or about December 1, 1998, ROC Inspector John Ratcliff scheduled a jobsite inspection at the Home for January 5, 1999. The Complainant did not appear for the inspection. However, the Complainant’s sister appeared for the inspection. The Respondent also did not appear for the scheduled inspection. Mr. Hancock testified that he would not place another employee (including his attorneys) in harm’s way. Inspector Ratcliff testified that he had a second ROC inspector assist him at the inspection as a precautionary measure.

15. On or about January 12, 1999, ROC Inspector Ratcliff issued a Corrective Work Order ("CWO") to the Respondent requiring the Respondent to correct several warranty items. See CWO, dated 1-12-99 and Complainant’s Exhibits A, B,C & D. Inspector Ratcliff testified that these warranty items were routine punchlist items that normally occur when a new home is built. Inspector Ratcliff testified that there were no building code violations at the Home.

16. The Respondent refused to correct the items in the CWO. Mr. Hancock testified that he did not contest Inspector Ratcliff’s findings that the items listed in the CWO required corrective work. However, Mr. Hancock testified once again that he refused to place an employee in harm’s way at the Complainant’s Home.

17. The undersigned Administrative Law Judge finds that the items listed in the CWO are routine punchlist items that generally occur in the construction of a new home. The undersigned Administrative Law Judge finds no city or county building code violations. Accordingly, the undersigned Administrative Law Judge finds that these routine punchlist items do not indicate poor workmanship or a wrongful act by the Respondent.

18. The undersigned Administrative Law Judge finds the testimony of Mr. Hancock and Mr. McNamara to be credible. Furthermore, the undersigned Administrative Law Judge carefully observed the Complainant’s behavior and demeanor during the hearing in this matter. The Complainant was volatile, loud, belligerent, evasive and disrespectful to all of the participants in this hearing (including the undersigned Administrative Law Judge). Accordingly, the undersigned Administrative Law Judge finds that it was reasonable for Mr. Hancock to conclude that his employees would not be safe at the Complainant’s Home. 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 concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #17.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #17.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #18. The Respondent refused to perform the corrective work set forth in the CWO. However, the Respondent has successfully established a valid justification for not performing the corrective work at the Complainant’s Home. No contractor should have to risk the safety of its employees to satisfy the requirements of a CWO.

5. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B license pursuant to A.R.S. §32- 1154.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 99-1598 be dismissed.

Done this day, June 2, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826