ALJDEC

00F-2575-ROC · Registrar of Contractors · 2000-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 27, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Jeff Wagner appeared on behalf of Wagner Architecture, L.L.C. (the “Complainant”). Charles Cork appeared on behalf of Braxton Builders, L.L.C. (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT

1. On or about June 1, 1999, the Complainant and the Respondent entered into a written contract (the “Contract”) requiring the Complainant to perform the following:

Architectural design service for Architectural Floor Plan and Elevations: $3,200.00.

See Complainant’s Exhibit 1. The Complainant was scheduled to perform these services for a house (the “House”) that the Respondent was constructing at 27351 N. 92nd St., Scottsdale, Arizona.

2. The Contract further stated the following: Note: Construction Documents and Construction Administration services are not included in this proposal but can be provided under a separate contract. Separate from this proposal is the civil design. The Owner would contract directly with the civil engineer for this work. Architectural inspections, construction phase services, contract administration, or any additional services not outlined within this contract will be in addition to this contract. Additional work will not be performed without the approval of the Owner. Additional work by the architect will be billed at $80.00 per hour.

See Complainant’s Exhibit 1.

3. Mr. Wagner testified that he has been a registered architect since 1985. Mr. Wagner testified that he has performed both residential and commercial architectural services. The Contract states that the Respondent is required to pay $3,200.00 to the Complainant for the Complainant’s architectural design services. See Complainant’s Exhibit 1. Mr. Wagner testified that the Respondent paid a $960.00 retainer to the Complainant. Mr. Wagner testified that the Respondent failed to pay the balance of $2,240.00.

4. Mr. Wagner testified that he provided architectural design services to the Respondent pursuant to the terms of the Contract. Mr. Wagner testified that he created and provided a Schematic Design of the House to the Respondent. Mr. Wagner testified that the Schematic Design showed the number of rooms and the size of the rooms at the House. Mr. Wagner testified that the purpose of the Schematic Design was to allow Mr. Cork to make modifications and changes to the drawings of the House.

5. Mr. Wagner testified that he also created and provided a three dimensional sketch of the House to the Respondent. Mr. Wagner testified that this three dimensional sketch was not part of the Contract.

6. Mr. Wagner testified that he subsequently created and provided a Design Development Drawing to the Respondent. Mr. Wagner testified that the Design Development Drawing reflected the changes and modifications that Mr. Cork had made to the aforementioned Schematic Design.

7. Mr. Wagner testified that he also created a Floor Plan for the House. Mr. Wagner testified that the Floor Plan showed the shapes, sizes and locations of the House’s rooms. Mr. Wagner testified that the Floor Plan included floor plans for the first and second floors of the House. Mr. Wagner testified that he provided the House’s Floor Plan to Mr. Sam Male. Mr. Wagner testified that the Respondent hired Mr. Male to create the “working” drawings for the House.

8. Mr. Wagner testified that the Complainant was only responsible for the front end design of the House. Mr. Wagner testified that the Complainant was not responsible for the construction document (e.g., the site plan) phase of the construction of the House.

9. Mr. Wagner testified that he also created and provided a Roof Plan for the House to the Respondent. Mr. Wagner testified that the Roof Plan was necessary for drainage issues. Mr. Wagner testified that he also provided a quarter scale Elevation Drawing for all of the sides of the House to Mr. Male.

10. Mr. Wagner testified that the Complainant was always available to address design issues on the House. Mr. Wagner testified that the Respondent did have a problem with the design of the House’s second floor bathroom. Mr. Wagner testified that he provided sketches and optional sketches of the bathroom to the Respondent.

11. Mr. Charles Cork is the Respondent’s Manager. Mr. Cork testified that the financing did not come through on the House. Mr. Cork testified that the House was never constructed.

12. Mr. Cork testified that the Complainant did not properly complete the drawings for the House. Mr. Cork testified that the drawings did not include the dimensions that were necessary to “convey the intent of the exterior walls and parapets.” Mr. Cork testified that the drawings did not include the elevations to “completely identify the unfurnished materials and locations.” Mr. Cork further testified that the drawings’ elevations did not “show the depth and locations of the footings.”

13. Mr. Cork testified that the House’s drawings were not completely dimensioned for the House’s first floor. Mr. Cork testified that the drawings included no dimensions for the House’s second floor. Mr. Cork further testified that the drawings did not show the window and door sizes. Mr. Cork further testified that the House’s Roof Plan was incomplete.

14. Mr. Wagner testified that the Complainant was willing and able to satisfy any of the Respondent’s aforementioned concerns regarding the House’s drawings. However, Mr. Wagner testified that the Respondent never requested additional drawings or information regarding the House’s dimensions, elevations and footings.

15. Mr. Wagner further testified that the Complainant was responsible for the design phase of the construction of the House. Mr. Wagner testified that the design phase drawings rarely include the horizontal dimensions. Mr. Wagner testified that the dimensions and footings are usually included in the construction document phase of the construction of the House. Mr. Wagner testified that Mr. Male was responsible for the construction document phase.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) & (11). The Complainant properly performed the architectural design services as specified in the Contract. The Complainant was willing and able to address any of the Respondent’s concerns regarding the architectural design services. The Respondent is obligated to pay the Complainant the balance of $2,240.00 pursuant to the terms of the Contract.

3. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class B- license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION In view of the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter (thirty-five [35] days after the date of mailing by the Registrar), that the Respondent’s Class B- license be suspended until the Registrar receives proof that the Respondent has paid the Complainant the amount of $2,240.00 for the architectural design services performed by the Complainant pursuant to the terms of the Contract.

It is further recommended that if the Respondent pays the Complainant the amount of $2,240.00 on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. Done this day, January 2, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of January, 2001, to:

Michael P. Goldwater Registrar of Contractors Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826