ALJDEC

00F-2091-ROC · Registrar of Contractors · 2000-07-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on July 18, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainant: Nathmi Abuarar, appearing pro se.

For Respondent: Jeffrey Barrister, Qualifying Party, appearing pro se.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: On or about January 29, 1999, Complainant contracted with Respondent to have a sign made and installed at the business premises of Complainant. The undisputed cost for the sign was $1,600 and has been fully paid. At the time the sign was contracted for, conversations were had concerning whose responsibility it would be to provide the necessary City of Phoenix sign permit. Complainant testified it was the accepted responsibility of Respondent. Respondent maintains the initial cost of the sign was reduced by $200 and that Complainant would then be responsible to obtain the required sign permit. When the sign was installed neither party had bothered to obtain a permit, each apparently believing the other had attended to that requirement. Respondent installed the sign without first determining if a sign permit had been obtained. Eight months after the sign had been installed, Complainant was cited by the City of Phoenix for failing to have a proper permit. After an appearance at municipal court Complainant was given a period of time to acquire the necessary permit, which was accomplished at an expense of $285. After the permit had been granted, difficulties continued between the parties concerning the required attendance by Respondent at a city inspection of the sign. To the date of this hearing the sign has yet to be inspected and approved by the City of Phoenix due to a failure of Respondent to attend an inspection. Respondent’s concern in this regard is over alleged threats made against him and one of his employees.

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 burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)((1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2- 19-119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 3. The Citation and Complaint alleges that Respondent violated A.R.S. §32-1154 (A)(2) and (7). These provisions provide for disciplinary action to be taken against a licensee for: (2) Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code; and

7) The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

It is clear that a sign permit for the sign fabricated and installed at the business premises of Complainant is required by the City of Phoenix. Under the Uniform Building Code provisions regarding the issuance of permits it is also clearly stated that all such permits are the responsibility of the owner of the premises, in this case Complainant. However, that does not obviate an alternative understanding between parties if that is to be their agreement. In this case, the testimony is diametrically opposed in that each party states it was the other’s responsibility to obtain the permit. It is equally clear that Respondent, being in the signage business with a full understanding of when permits are required, has a superior knowledge about such matters compared to that of Complainant. When the sign was actually installed Respondent failed to determine if such a permit had been granted. Since such a permit had not been issued Respondent should not have installed the sign. If Respondent had bothered to determine if the required permit had been obtained, then the difficulty experienced between the parties may have been cured at that time. While it is true that Complainant, as it relates to the City of Phoenix, bears the burden of obtaining a permit, it is the responsibility of Respondent to be certain that such a permit is, in fact, issued. Although it appears Respondent has attempted to cooperate with Complainant in securing the necessary permit, threats and poor business practices have caused such a breach of communication that nothing positive has been accomplished. Inappropriate conduct of this nature is not to be condoned and will not be given any credence by this tribunal. Although there may have been an agreement that Complainant was to be responsible for obtaining the necessary permit, Respondent by installing the sign without such a permit has abdicated a responsibility on his part and ought to bear a portion of the cost and burden as a result. In this matter, it is entirely appropriate that Respondent share in the cost of the permit by reimbursing Complainant for one-half the cost thereof and to attend any inspections required by the City of Phoenix. By a preponderance of all the evidence Respondent is found to be in violation of A.R.S. §32-1154(A)(7); the preponderance of evidence, however, fails to sustain any finding that Respondent is in violation of A.R.S. §32-1154(A)(2) as charged in the Citation and Complaint.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, commencing on the effective date of the Order entered in this matter, that the Class L-38 license of Respondent shall be suspended until the Registrar of Contractors receives credible written proof that Respondent paid to Complainant the sum of $142.50 and has attended a sign inspection as required by the City of Phoenix. It is further recommended that if Respondent tenders the above described payment on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place.

ENTERED this day, July 18, 2000.

______________________________________ Neal H. Jordan 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