ALJDEC

99F-M1364-ROC · Registrar of Contractors · 2000-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2000. APPEARANCES: Complainant Amon Builders, Inc. was represented by its President and Qualifying party, Michael Amon. No person appeared on behalf of Respondent Four Seasons Plumbing, Inc. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was scheduled to be held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Arizona Registrar of Contractors (Registrar). Based upon review of the entire record, including the documents provided by the Registrar, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant was the builder for an addition at the Schwark residence at 705 North Manzanita Road in Payson, Arizona. 2. Respondent is the holder of a Class C-37R license issued by the Registrar of Contractors (Registrar). 3. Respondent was the subcontractor who bid and received the project for the plumbing at the Schwark residence addition. Respondent completed the underground and the rough-in. Respondent did not complete the top-out.

4. Complainant paid Respondent on January 6, 1999, on January 19, 1999 and on February 3, 1999, for a total to that point of $2,125.23. These payments were for the underground, the rough-in and the top-out. The payment for the top-out was to include the tub and shower valve assembly.

5. Complainant’s superintendent’s notes show that Respondent did set the tub on February 8, 1999. However, Respondent did not return to complete the project. 6. Complainant received a call from Respondent on February 17, 1999 indicating that Respondent wanted something in writing from Complainant saying that he was done with the job, and that the remaining draws (of 30%) on the plumbing portion was enough to get someone else in and that he did not want to do any more business with Complainant. 7. Complainant sent written notice to Respondent requesting him to complete the project and indicating that if Respondent did not return to complete the job, that Complainant would be forced to get someone else to complete the work. Respondent had been paid through the top-out. When Respondent did not respond, Complainant hired Lamco Plumbing to complete the top-out at a cost of $618.19. 8. Complainant sent another written notice to Respondent requesting him to complete the trim phase portion of the project and indicating that if Respondent did not return to complete the job, that Complainant would be forced to get someone else to complete the work. Respondent did not pick up this notice at the post office. When Respondent did not respond, Complainant hired Lamco Plumbing to complete the trim phase at a cost of $735.00. 9. The remaining balance which would have been paid to Respondent for completion of the remainder of the contract was $872.24. Complainant was forced to hire another contractor, at a total cost of $1,353.19, to complete the work which Respondent abandoned, and to complete the remainder of the Respondent’s contract. Complainant incurred additional cost of $480.95 for this project on this contract. 10. In April 1999, Complainant filed a formal complaint with the Registrar alleging a complaint against Respondent regarding abandonment of their contract. Attached to the formal complaint were copies of documents in this regard. 11. As a result of receiving the complaint, Registrar’s Inspector (Inspector) Van Bagley advised Respondent to contact Complainant and take care of the matter within fifteen days. 12. On June 9, 1999, Complainant advised the Inspector that the matter was not resolved, and requested an administrative hearing. 13. On August 13, 1999, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.1, 32-1154.A.7, and 31-1154.A.11. 14. Respondent filed its written answer, indicating that it had not been paid in excess of the amount Complainant was saying he owed them, and that this was “harassment.” 15. The matter remained unresolved, and Notice of Hearing was issued on November 22, 1999 setting the matter for hearing to be held on January 11, 2000. 16. Respondent failed to appear at the noticed hearing, and did not present any evidence in defense of the allegations set forth in the Registrar’s Citation and Complaint. THE APPLICABLE LAW

A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 11. Failure by a licensee … to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay, or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

CONCLUSIONS OF LAW 1. Respondent had a valid contract with Complainant which he failed to complete. Complainant made every good faith effort to seek Respondent’s return to the project for completion of the contract. Respondent failed to respond to Complainant’s requests to complete the top-out, despite having been paid for the completion of the top-out. Respondent attempted to remove himself from the job without completing the top-out portion for which Respondent had already received payment. Therefore, Respondent failed to complete the work he contracted for and the work he had been paid for. Respondent abandoned the contract. Respondent’s actions in abandoning the contract are actions in violation of A.R.S. §§32-1154.A.1 and 32-1154.A.7. 2. Respondent’s actions in abandoning the contract resulted in overpayment to Respondent of some amount. The evidence shows that Complainant paid another contractor $618.19 to complete the top-out portion of the job which Respondent abandoned. The evidence shows that Complainant incurred a total of $480.95 additional costs on the project. 3. Complainant sustained the required burden of proving the charges set forth in the Registrar’s Citation and Complaint by a preponderance of relative, substantial and probative evidence and, consequently, the record supports a finding that Respondent has violated A.R.S. §§32-1154.A.1, 32- 1154.A.7, and 32-1154.A.11. 4. The Registrar has the authority, and retains the discretion, to determine the propriety of discipline of a contractor’s license after full consideration of the evidence in a matter. The Registrar is empowered to impose reasonable conditions on a contractor which may serve to reduce or eliminate otherwise appropriate disciplinary penalties for violations of the Arizona contracting laws. A.R.S. §32-1154.B. Whenever corrective measures on a jobsite are no longer warranted or possible, the remedy of partial or total restitution is equitably justified. In this way, a prevailing complainant need not await the ultimate outcome of protracted litigation to recover at least a portion of a demonstrated loss and, of equal significance, a contractor respondent is given the opportunity to control, to some extent, the severity of a disciplinary penalty. Moreover, any amounts paid in satisfaction of a condition affecting licensure may properly be credited or applied against any civil judgment ultimately obtained in favor of either party. See Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437 (1990). RECOMMENDED ORDER 1. Based on the foregoing, it is recommended that the Respondent’s license be suspended unless the Registrar receives written proof that Respondent has paid, or properly tendered, to Complainant, as restitution, the sum of $480.95, the additional costs needed to complete both the remaining top-out portion and the finish portion on the contract which Respondent abandoned. 2. It is further recommended that if Respondent accomplishes the above restitution, on or before the effective date of that ORDER, then the above recommended temporary license suspension shall not take place and Citation No. M99-1364 shall be closed. RECOMMENDED this day, January 24, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Original transmitted by mail this ____ day of January, 2000, to:

Registrar of Contractors 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 PH(602) 542-9826/ FAX 542-9827