ALJDEC

99F-M1149-ROC · Registrar of Contractors · 1999-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 1999 APPEARANCES: Complainants : Gary and Debra Holloway appeared at the hearing. Respondent : Seth Dutton, Owner of Arizona Home Works appeared; with Mr. Dutton was witness Angela Combs, employee with L&R Guzman Corporation. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Respondent is an individual, Seth Dutton, doing business in the state of Arizona as Arizona Home Works, holding a Class B-03 license (General Modeling and Repair) issued by the Registrar of Contractors. 2. Complainants and Respondent entered into a written contract on June 16, 1997 whereby the Respondent contractor agreed to furnish material and perform services necessary to make certain improvements to property situated at 19101 Via Del Jardin in Queen Creek, Arizona. In consideration for the work to be performed and materials provided, Complainants paid Respondent a down payment of $2,500.00 on June 16, 1997. The parties stipulate that they intended to enter into an enforceable agreement on June 16, 1997 as represented by the “Proposal” and “Price Sheet” (Hearing Exhibit A).

3. As a condition precedent to Respondent’s performance, the agreement called for Complainants to dig footings for concrete, pour and finish the concrete and frame the walls. The agreement contemplated a room addition and garage extension. Complainants were unable to perform the condition due to a physical ailment caused by trauma. Complainants were further inhibited from performance due to financial hardship related to the injury.

4. Respondent paid $669.90 to the Town of Queen Creek for a building permit, albeit the contract merely called for an expenditure of $350.00 for the “drawings and engineering” to support the acquisition of a building permit. Respondent testified further that he expended $400.00 as a wage for two laborers who worked at the site for two days digging footings. While Complainants acknowledge that the work was performed, Respondent is unable to offer proof of the wages paid by the company.

5. Respondent is unwilling to perform. Complainants want simply to be reimbursed for the funds they expended for work not performed.

6. The agreement between the parties did not contain a liquidation clause.

7. The weight and sufficiency of the evidence establishes that Complainants were unable to perform their obligations under the agreement, which were a precondition to Respondent’s performance, due to physical inability and financial hardship.

8. The agreement is silent on the issue concerning which party was responsible for the procurement of the building permit. The Uniform Building Code places upon the homeowner the obligation to obtain all necessary building permits. Here, Arizona Home Works obtained the appropriate building permit from the Town of Queen Creek.

CONCLUSIONS OF LAW

1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (7); specifically, Respondent has committed a “wrongful act“ by refusing to reimburse Complainants for work not performed.

2. The burden of proof generally at an administrative hearing falls to the Complainants. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of the evidence, Complainants have failed to establish that Respondent contractor violated A.R.S ( 32-1154 (A) (1) as charged in the Citation and Complaint. It has not been shown that Respondent has abandoned a contract or refused to perform absent legal excuse. Complainants’ failure to satisfy the condition precedent to Respondent’s performance has excused Arizona Home Works from further performance.

4. By a preponderance of all of the evidence, Complainants have established that Respondent contractor violated the spirit and intent of A.R.S. ( 32-1154 (A) (7) as charged in the Citation and Complaint. Respondent failed to reimburse the Holloways for the amount given to Respondent by the homeowners as a down payment in support of the agreement, absent that which Respondent expended pursuant to the terms of the agreement and for which expenditure(s) Respondent has provided proof ($669.90).

5. Respondent’s failure to reimburse for work not performed under the agreement constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER

In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class B license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent provides the Registrar of Contractors credible written proof that Respondent has paid or tendered the sum of $1,831.10 (calculated by noting the amount which the homeowners had paid in contemplation of performance of the terms of the contract ($2,500.00), minus that which the contractor paid for the building permit ($669.90)) to Complainants before the effective date of the Order, the indefinite suspension should not take place and the file should be closed.

Set forth this 28th day of October 1999.

______________________________________ Gary B. Strickland 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 ___________________________

-----------------------

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