ALJDEC

99F-P0245-ROC · Registrar of Contractors · 1999-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|HARLEY BOUUGHNER, |§| | | |§|CASE NO.: P99-0245 | | |§| | |Complainant, |§|DOCKET NO.: 99F-P0245-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 122453, Class B-03 of|§|DECISION AND ORDER | |Gary Leroy Watson d.b.a. |§| | |GARY L WATSON CONTRACTING |§| | |(INDIV), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: September 30, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through his attorney, Steve Titla. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on September 30, 1999. The Complainant appeared on his own behalf and the Respondent appeared through his attorney, Steve Titla. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of a Class B-03 License issued by the Registrar of Contractors. The Respondent’s Class B-03 License was canceled on April 21, 1999. The Respondent was issued a Class B- License (No. 143827) on the same date.

2. This is a residential matter where the Complainant was acting as an Owner/Builder and was constructing his own residence. Credible evidence established that the Complainant regularly employed individuals, which he knew were not licensed with the Registrar of Contractors, to work on the new residence. All of the unlicensed individuals were either paid an hourly wage in cash or traded unlicensed work with the Complainant who would then perform work on their residence. All construction work on the residence was performed under the Complainant’s direction.

3. As the new residence reached completion, two of the unlicensed individuals who were working as carpenters for the Complainant quit and left the job-site to obtain work somewhere else.

4. The Complainant then contacted the Respondent and asked the Respondent to correct some of the framing work that had already been completed. The Respondent successfully completed several areas of repair in the interior of the residence.

5. The Complainant then requested the Respondent to perform corrective work on the exterior as well as further work on the interior of the residence.

6. Credible evidence established that the parties then entered into an agreement which required the Respondent to correct designated portions of the carpentry work performed by the unlicensed individuals and to install kitchen cabinets in the new residence.

7. The essential terms of the parties’ agreement is that the Respondent was to be paid on a time and materials basis and the Respondent was to perform corrective action on specific areas of deficient workmanship performed by the unlicensed individuals and build soffits for the kitchen area and install blocking for kitchen cabinets.

8. The parties then entered into a separate oral agreement for the Respondent to order and install kitchen cabinets in the residence.

9. The Respondent began work on the agreed upon items but continually ran into the issue of where to stop the corrective action as there was a great deal of unacceptable work on the project that had previously been completed by the unlicensed individuals who performed work as the Complainant’s employees.

10. Pursuant to the parties’ agreements, the Respondent constructed blocking and soffits and ordered and installed new kitchen cabinets. The Complainant was very dissatisfied with the kitchen cabinets and the installation of the new cabinets and the parties’ personal relationship deteriorated rapidly.

11. The parties then became involved in a dispute regarding the cabinets wherein the Complainant demanded that the cabinets be removed and the Complainant’s money returned and the Respondent demanded an opportunity to correct the cabinets to the Complainant’s satisfaction. The Respondent stopped work on the project and the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors.

12. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence.

13. The Respondent declined to comply with the terms and conditions of the corrective work order and the Respondent requested a formal hearing for the matter.

14. When the Respondent failed to comply with the terms and conditions of the corrective work order, the Complainant had the new kitchen cabinets removed and replaced by an alternative contractor. The Complainant now seeks restitution for his costs of replacement in the sum of $4,887.78.

15. In addition to the items set forth on the corrective work order, the Respondent is charged with an alleged violation of A.R.S. §32- 1154(A)(10) for his actions in allegedly aided the unlicensed individuals to find employment with the Complainant.

16. There was no dispute that, prior to the Respondent’s involvement in the project as a licensed contractor, the Complainant crossed paths with the Respondent at a building supply store and asked if the Respondent knew of any “framers” that were interested in hourly employment.

17. Credible evidence established that the Respondent said no but later called the Complainant and gave him the telephone number of an individual who had attempted to find work with the Respondent.

18. The Complainant contacted the individual and hired the individual and the individual’s helper as hourly employees for the project.

19. A review of the license records of the Registrar of Contractors establishes that the said individual that was referred by the Respondent was not licensed by the Registrar of Contractors when the individual performed construction work on the Complainant’s residence. However, License records establish that the said individual now has obtained a contractor’s license and is a licensed contractor subject to the jurisdiction of the Registrar of Contractors.

20. Credible evidence established that the Respondent did not, and does not, know the unlicensed individual, and that the Respondent had no financial interest in the individual’s employment and that the Respondent did not allow his contractor’s license to be utilized by the unlicensed individual or the Complainant.

21. The undisputed fact that the Respondent gave the telephone number of the then unlicensed individual to the Complainant with knowledge that the Complainant might offer the individual hourly employment is found to constitute a violation of A.R.S. §32-1154(A)(10).

22. The fact that the Respondent received nothing for his act and did not allow his license to be used by anyone other than himself .and the fact that the Complainant was very aware of the license status of the unlicensed individual when the Complainant hired him to do work on the Complainant’s residence, are all found to be circumstances in mitigation of the violation.

23. It is found that the violation of A.R.S. §32-1154(A) was the result of the poor judgment by the Respondent rather than any intentional act to violate A.R.S. §32-154(A)(10).

24. The following items of the complaint and the corrective work order were shown to have either been left in an incomplete state or to fail to comply with minimum applicable industry standards and to require proper corrective action by the Respondent:

y) The parties’ agreement requires the Respondent to complete a chimney pipe and block (around the pipe) for the wood stove in the basement. The Respondent shall properly complete the installation of the chimney pipe and block. Credible evidence, produced at hearing, established that Complainant is responsible for completing the framing around the block and the chimney before the chimney can actually be properly installed and used. After the framing is completed, the Respondent shall complete the installation of the wood stove in accordance with his agreement with the Complainant.

z) The Respondent agreed to repair the covered porch. This item has not been completed. The Respondent shall properly complete the covered porch including the replacement of the lower and upper beams.

aa) The 6’ wide stairs for the covered porch have not been completed per applicable code requirements. There are no handrails and no guardrails and the top tread fails to comply with code requirements. The Respondent shall properly complete the installation of the porch stairs.

ab) The Respondent agreed to “fix” open deck beams and columns. Credible evidence established that the Respondent failed to complete the agreed upon work on this item. The Respondent shall properly repair or replace the deck beams and columns.

ac) The parties’ agreement provided for the extension and covering of the porch by the septic system. Credible evidence established that the Respondent failed to complete the work on these items. The Respondent shall extend and cover the porch by the septic system in accordance with his agreement with the Complainant.

30. Credible evidence established that the initial kitchen cabinet installation did not comply with minimum workmanship standards and that it required proper repair or replacement, as directed in the corrective work order.

31. There was no dispute that the Complainant, prior to the hearing, and prior to the issuance of any certificate of occupancy, caused the entire kitchen cabinet installation, including soffits, to be removed and replaced by an alternative licensed contractor. No further corrective action regarding the kitchen cabinet installation is now possible. The Complainant now seeks the cost of the kitchen cabinets replacement and for the restitution of the monies paid to the Respondent for the initial installation of the kitchen cabinets and soffits. This item is found to necessarily involve a money adjudication and to fall within the purview of a civil court of competent jurisdiction.

32. Credible evidence, produced at hearing, established that the personal relationship between the parties is very strained and volatile. The Respondent is admonished that he shall give a least 72 hours’ notice of any date selected to perform the corrective actions required by the this Order and the Complainant is admonished that reasonable access must be given the Respondent to perform the directed corrective action and that any unreasonable denial of access may be treated as the substantial equivalence of compliance with terms and conditions of the Order in this matter.

33. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. Notice is also taken of the apparent fact that there would be little apparent purpose in suspending a License which has been canceled. . . . . . . . . .

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. §32-1154 (A) (7) (Wrongful Act),(10), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that, on the effective date of this Order, the Respondent’s Class B-03 License be revoked.

It is further recommended that if the Respondent properly accomplishes the corrective actions set forth above in Finding of Fact Nos. 26(a) through 26(e), inclusive, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No. P99-0245 shall be closed.

Dated this 19th day of October, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of October, 1999, 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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