ALJDEC

99F-2485-ROC · Registrar of Contractors · 1999-08-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on August 26, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings.

APPEARANCES For Complainant: Attorney Robert L. Stewart, Jr. For Respondent: Failed to appear and defend.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Due and proper notice of the hearing scheduled for this matter was duly mailed to all parties of record and the Respondent failed to appear and attend although the hearing was delayed for a period of 20 minutes to accommodate an a late appearance. Complainant and Respondent entered into a contract (“Contract”) dated December 28, 1998, the terms of which provided that Respondent, for the contract price of $7,900.00, would construct modifications and improvements to convert an existing two car garage into and office area, and to convert an existing sunroom into an enclosed sitting/garden room adjunct to the pool area. Respondent commenced construction pursuant to the Contract shortly after the execution date and, although it was represented that the work would be completed within a three week time frame, by the date the complaint was filed in this matter the work was still significantly incomplete. During the course of construction the uncontroverted evidence substantiates that Respondent failed to properly provide sufficient labor and acceptable materials to complete the work in a timely manner. Excessive delays were caused by Respondent deliberately stalling and making excuses as to why he was unable to perform the work in a timely manner, and, further, he was duplicitous in his commitments to Complainant when stating he would return in a timely manner to complete the work. The Complainant filed the instant complaint on February 24, 1999 and the evidence establishes that from the date Respondent commenced work under the Contract to the date of the complaint, Respondent has abandoned the work, has performed in a manner that is excessively below acceptable minimum workmanship standards and has performed work that should have been properly performed by other licensed contractors. As a result of the complaint being filed in this matter, an on-site inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter (“Corrective Work Order”) being sent to Respondent requiring that certain corrective or remedial work be performed within a stated period of time. The Corrective Work Order cited that Respondent failed to obtain proper building permits that were required for the scope of work under the Contract, which results in not having appropriate inspections performed by the local building officials. The Corrective Work Order also verified and confirmed each and every item of poor and substandard workmanship of Respondent as listed in the complaint. Other testimony clearly establishes that the workmanship of Respondent was so poor and devoid of any compliance with local building codes, that the only solution to rectify and/or correct the defective work would be to demolish a considerable part thereof. The evidence also confirms and establishes that Respondent performed electrical and air conditioning work that is not covered under the license issued to Respondent. This fact requires a finding that Respondent was clearly acting beyond the scope of work authorized by his license. Since the date of the complaint and the issuance of the Corrective Work Order, Respondent has failed and neglected to make any effort to remedy, correct or complete the work as set forth in the Contract and the Corrective Work Order.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Respondent violated A.R.S. §32-1154 A (1), (2), (7), (17), (23), and (3), namely Rule R4-9-108, as charged in the Citation and Complaint in each respect as set forth below. A preponderance of the evidence establishes that Respondent abandoned the Contract and refused to properly perform the work under the Contract without legal excuse in violation of A.R.S. §32-1154 A (1). By a preponderance of the evidence it is also established that Respondent purposefully and intentionally disregarded the requirements of the local building code adopted in the area in which the work was to be performed by not only failing to obtain any requisite permits, but also, by failing, in a gross and negligent manner, to properly comply with building code specifications applicable to the work to be performed under the Contract, all in violation of A.R.S. §32-1154 A (2). By a preponderance of the evidence, Complainant has established that Respondent has intentionally committed a wrongful act by failing, without legal excuse or defense, to properly and in a workmanlike manner perform the terms and provisions of the Contract on Respondent’s part to perform, all in violation of A.R.S. §32-1154 A (7). The preponderance of all the evidence establishes that Respondent performed electrical and air conditioning work, which work is beyond the scope of the Class K-61 license issued to Respondent in violation of A.R.S. §32-1154 A (17). Such work must be performed by contractors properly holding a Class C-11 and Class C-39 license, licenses which were not held by Respondent. By a preponderance of the evidence, Complainant has established that Respondent intentionally failed to comply with the Corrective Work Order issued by the Registrar of Contractors in violation of A.R.S. §32-1154 A (23). By a preponderance of the evidence taken as a whole, Complainant has established that Respondent has failed to perform the work undertaken pursuant to the Contract in a professional and workmanlike manner in violation of A.R.S. §32-1154 A (3), namely Rule R4-9-108. In point of fact, the conclusion is inescapable that the workmanship of Respondent is so substandard and destitute of responsible effort that it is inconceivable any scenario exists that would justify the Respondent being permitted to retain his current license.

RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class K- License No. 137192 be revoked on the effective date of the Order entered in this matter.

DONE AND ENTERED this day, August 26, 1999

______________________________________ Neal H. Jordan Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater 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