ALJDEC

00F-0267-ROC · Registrar of Contractors · 2000-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2000 APPEARANCES: Complainants : Nancy Ybanez represented the interests of the homeowners pro se. Respondent : Robert Stewart, Attorney at Law, appeared for Fluger Construction, Inc.; Henry Fluger, President; Nancy Fluger, Vice President/Secretary; William R. Furman, W.R.F. Management, Consultant. Registrar of Contractors Inspector : Joe Cotton. 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 in the business of remodeling and repair, doing business in the state of Arizona as Fluger Construction, Inc., holding a Class B-03 license issued by the Registrar of Contractors.

2. Complainants and Respondent entered into a written contract on June 29, 1999 whereby the Respondent contractor agreed to furnish material and perform services necessary to remodel and repair certain parts of Complainants’ residence situated at 20618 North 21st Drive, Phoenix, Arizona. In consideration for the work performed and materials provided, Complainants agreed to pay the sum of $13,650. As of the hearing, Complainants have paid Respondent $7,000. on the contract.

3. Complainant filed a complaint with the Registrar of Contractors on July 26, 1999, wherein Complainants stated dissatisfaction with the progress and quality of the work which had, to that date, been performed on the project. The complaint resulted in the Registrar’s issuance of a Corrective Work Order on September 27, 1999, subsequent an on-site inspection by an assigned Inspector for the Registrar of Contractors. The inspection was conducted on September 9, 1999. The Corrective Order directed the contractor to 1) make corrections to the flashing at the adjoining patio roofs; 2) remove and replace the concrete stoop at the rear apartment entrance; 3) correct a leak emanating from the light well in the apartment skylight; 4) stucco the patio rafter above the south wall of the master closet; 6) correct the drywall in the hall damaged during bathroom demolition; 7) determine the cause of and correct the patio leak into the new closet; 9) ensure that the ceiling fan and light in the master bedroom was in conformance with electrical codes; 11) to perform contractual obligations; and 12) ensure that all necessary permits are obtained and inspections performed. Items 5), 8) and 10) were found by the Registrar not to constitute violation(s) for which action was required.

4. The September 9, 1999 on-site inspection was conducted ex parte as the Respondent contractor was not in attendance either personally or by authorized representative. Subsequent to Complainants having filed their complaint, Respondent retained WRF Management Consulting to represent the company in negotiated efforts to resolve this dispute. William R. Furman, the firm’s President, had met with Complainants and Complainants counsel, Platt & Westby, P.C., at Complainants’ home on September 8, 1999, during which conference the representatives agreed to request a postponement of the scheduled September 9, 1999 inspection in order to allow for a crystallization of the scope of work yet remaining on the project and to afford retention of an independent contracting firm whose responsibility would be to prepare an “independent scope of work” proposal. Complainants allowed the on-site inspection to proceed even though Respondent had been informed that the review would be postponed.

5. The Corrective Work Order afforded Respondent fifteen days within which to make the necessary corrections. Respondent made a good- faith attempt to comply. Complainants, however, precluded Respondent from continuing with its efforts to comply by immediately foreclosing access to the residence on the sixteenth day.

6. A pre-hearing job site inspection was conducted by the Registrar’s Inspector on January 27, 2000. At the hearing, the assigned Inspector gave his opinion that all but Corrective Order items 2) and 11) had been cured. Item 11), as stated by the Inspector, constitutes a legal conclusion which opinion is not accorded weight by the undersigned Administrative Law Judge. The item is, therefore, disregarded.

7. The only item subject to discipline presented by Complainants is that related to the concrete stoop, Item No. 2). The stoop, as it has been repaired, fails to satisfy workmanship standards. The weight of the evidence establishes that the one inch concrete lip presents a safety consideration and violates code standards. The weight of the evidence further establishes that the only manner by which the deficiency may be remedied is to tear out and remove the stoop altogether. The Contractor agrees with the Inspector that the only available alternative to the present condition is to remove the source of the deficiency. It is no defense, however, that Respondent labored on this item gratis. The fact remains that the work as it now stands fails to comply with workmanship standards.

8. All other enumerated items of the complaint were found either to have been corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the Complainant. 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).

2. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3); specifically, Rule R4-9-108 (Workmanship Standards). Respondent failed to reconstruct a concrete stoop at the rear entrance to the apartment in conformity with workmanship standards.

3. By a preponderance of all of the evidence, Complainant has failed to establish that Respondent contractor violated A.R.S ( 32-1154 (A) (7) and (23) as charged in the Citation and Complaint.

4. Respondent’s failure to effect a repair of the deficiency of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

5. Respondent contractor should be required to remove the concrete stoop installed by the contractor at the rear entrance to the apartment.

6. Complainants are advised that Complainants are obligated to provide Respondent access to the property and to leave Respondent unencumbered in its effort to satisfy the terms of the Registrar’s Order.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B-03 license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes appropriate and effective remedial work on the deficiency described in Finding of Fact No. 7 herein, on or before the effective date of the Order, the suspension should not be put into effect and the file closed.

Set forth this 1st day of February in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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