ALJDEC

00F-2568-ROC · Registrar of Contractors · 2001-04-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2001. APPEARANCES: COMPLAINANT: Bennie Tye, on his own behalf. RESPONDENT: by Aaron Kizer, Esq.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Complainant Bennie Tye (Tye) is a homeowner residing at 2725 East Corona, in Phoenix, Arizona. Tye contracted with an intermediary, Community Excellence Project, to purchase the home, and then moved in on or about January, 2000, after construction had been substantially completed by RAJ Construction, Inc., based on its general contract with the intermediary. 2. Respondent RAJ Construction, Inc. (RAJ Construction) is a corporation holding Arizona Contractor's License No. 064573, Class B, issued by the Registrar of Contractors (Registrar) on January 29, 1986. Ronald Jauregui Sr., is an officer in the corporation, and qualifying party on the license. 3. On May 3, 2000, Complainant Tye filed a complaint with the Registrar alleging a number of workmanship deficiencies by RAJ Construction in the construction of the home, including certain aspects of the exterior perimeter block fence. Between that date and November 1, 2000, Tye filed additional correspondence with the Registrar amending and adding items to the original complaint. 4. The complaint was assigned to the Registrar's Inspector Dan Lafond, who first conducted a jobsite inspection on May 16, 2000, and then issued a Corrective Work Order to RAJ Construction on May 24, 2000 (CWO I).

5. Given the additional amendments to the complaint by Tye over time, Inspector Lafond conducted a second jobsite inspection on July 25, 2000, after which he issued a Corrective Work Order on July 28, 2000 (CWO II). The inspector then conducted a third jobsite inspection on November 20, 2000, after which he issued a Corrective Work Order on November 27, 2000 (CWO III). 6. When the items at issue were not administratively resolved, the Registrar then issued a CITATION AND COMPLAINT in Case No. 00-2568 to Respondent on January 9, 2001, charging the licensee with possible violations of A.R.S. §§ 32-1154.A.3 (and A.A.C. R4-9-108), A.7, and A.23. 7. RAJ Construction timely filed its written answer to the CITATION AND COMPLAINT on January 18, 2001, denying all allegations. 8. With the issues thus joined, hearing was scheduled and convened on March 28, 2001. Complainant Tye appeared and testified; Respondent RAJ Construction appeared through counsel and presented the testimony of John Ramirez, Frank Canez, Ronald (Ronnie) Jauregui Jr., and Ronald Jauregui Sr. Inspector Lafond also appeared and testified. All testimony was subject to cross-examination. 9. Respondent also offered Exhibits 1 through 5, which were marked and admitted over Complainant's objections to the hearsay contained in the documents. Complainant's objections were overruled by the undersigned as going to the weight and probative value to be accorded each exhibit, rather than to its admissibility. 10. At hearing, the parties stipulated that only a limited number of workmanship concerns raised by Complainant relative to portions of the exterior perimeter fence in the backyard remained at issue. As referenced in the Corrective Work Orders, these remaining issues were generally addressed under Item 1 of CWO III as it related back to Item 5 of CWO II, except for the issue of the backyard south fence gate-latch, which had not been raised at any time prior to the prehearing jobsite inspection on March 26, 2001. 11. The fence in question is an "interlocking block" fence, sometimes called a "privacy" fence, and was as specified in the construction contract. This type of fence is less commonly seen than a standard masonry block fence. By testimonial description (no photographs were submitted, nor other demonstrative evidence), the nature of the construction of an interlocking block fence results in a less rigid, more "flexible" fence than seen in a standard mortared masonry block fence. 12. Based on his several jobsite inspections (including a prehearing inspection he had conducted on March 26, 2001), the Registrar's Inspector Lafond testified generally regarding the overall construction of Complainant's residence, the nature of the concerns raised by Complainant as amended, and the overall corrective action taken over time by RAJ Construction, much of which the company voluntarily agreed to perform without being required to do so (see, e.g., CWO II). 13. With specific regard to the present status of the backyard interlocking block fence, Inspector Lafond described his observations and conclusions relative to the initial construction of the fence and additional work done over the course of his several inspections and to the present. As of his prehearing inspection on March 26, 2001, the inspector noted that the following areas of the backyard fence did not appear to meet minimum standards, but as a result of causes the inspector could not readily ascertain: A. The column to the west of the southeast corner was loose, such that if pressure was applied, that run of fence could be made to wobble; B. Certain of the vertical interlocking joints were loosened, apparently due to sideways movement of the fence; C. Seven cap blocks were loose along the southernmost panel of the east fence; D. A cap block was loose on the top course of the second panel from the east end of the south fence line; E. The fence portion running from the first column on the east line of the south fence was in need of repair. 14. The inspector also noted several other concerns raised by Complainant Tye at the prehearing inspection, but concluded that those areas met workmanship standards or had not previously been raised (i.e., the south fence gate-latch), such that no corrective action was required by anyone. 15. When queried by Complainant and Respondent, Inspector Lafond concluded that the problems he had observed in the deficient areas of the fence were such that they all could have resulted from external forces applied to the fence, rather than simply being the product of poor workmanship. He concluded that if that were the case - which he could not tell - the problems would not be Respondent's responsibility to correct.

16. In his testimony, Complainant Tye concurred with the Registrar's inspector that the sections of the fence described by the inspector, and other sections as well, were loose, broken, misaligned, or otherwise unacceptable to him. Because Tye denied any intentional acts on his own part or by others within his control which may have resulted in damage to the fence or caused its present need for repair, his contention was that RAJ Construction was responsible for and should be required to correct the problems. 17. Through the testimony of its witnesses, Respondent RAJ Construction asserted that both the initial construction of the fence and all subsequent work done - both by voluntary agreement and as required by the Corrective Work Orders - met and exceeded all workmanship standards. As one example, Respondent stated that early in November, 2000, in response to a Corrective Work Order by the Registrar and Complainant's concerns about the stability of the fence, it had poured a new footing for a certain linear section of the fence which footing was significantly more extensive than industry or contract specifications required. 18. RAJ Construction further contended that in light of the nature, extent, and the timing of their occurrence, the present deficiencies in the fence (which deficiencies it does not dispute, to the extent its representatives were allowed only limited access to observe them at the recent jobsite prehearing inspection), were likely the result of actions by Complainant or others (such as schoolchildren walking down the alley), such that neither RAJ Construction nor its fence subcontractor should be responsible for any additional corrective action.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship rule), A.7, and A.23. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. // //

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant Tye must demonstrate by a preponderance of the evidence that Respondent RAJ Construction violated any one or more of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. In this case, the undersigned concludes that Complainant Tye has failed to provide sufficient relevant, probative and material evidence to sustain his burden of demonstrating, by a preponderance, that any workmanship deficiencies in the interlocking block fence are the responsibility of Respondent RAJ Construction to correct. Therefore, no violations of A.R.S. § 32-1154.A.3 (and A.A.C. R4-9-108) and A.R.S. § 32- 1154.A.23 have been proven. 4. In light of the above conclusion, it is further determined that the preponderance of the evidence does not demonstrate any violation of A.R.S. § 32-1154.A.7.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors not impose any disciplinary penalty against Contractor’s License No.

064573, Class B, held by Respondent RAJ Construction, Inc., and that the Citation in Case No. 00-2568, and the Complaint upon which it is based, be closed. Done this day, April 13, 2001.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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