ALJDEC

00F-G0621-ROC · Registrar of Contractors · 2000-11-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On November 20, 2000, a hearing was held to determine if Respondent Marcus Construction, Inc. (“Marcus”) violated provisions of A.R.S. §32- 1154(A). Complainant Sunstate Packagers (“Sunstate”) was represented by counsel, Craig Zirbel. Marcus was represented by counsel, Alicia Mykyta. Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT On March 5, 1999, Sunstate entered into a written contract with Marcus for the construction of a new office and manufacturing facility (“the facility”) located at the intersection of 22nd Street and Rose Garden Lane in Phoenix, Arizona. The contract price was $655,000.00. The construction commenced in June or July 1999 and was completed in March 2000. On March 27, 2000, Sunstate filed the instant complaint with the Registrar of Contractors against Marcus, alleging certain deficiencies in the construction performed by Marcus, which are set forth in a list of 29 items. See Complainant’s Exhibit 2. On April 12, 2000, Registrar of Contractors Inspector Lee Deem conducted a jobsite inspection at the facility. Present at the inspection were Scott Blake and Ted Blake, co-owners of Sunstate, Chris Novack, Project Manager for Marcus, and Chris Halstead, Superintendent for Marcus. As a result of the inspection, Inspector Deem issued a Corrective Work Order (“CWO”) on April 19, 2000, providing Marcus fifteen calendar days to perform certain remedial work. The CWO identified 12 items in need of remedial work. See Complainant’s Exhibit 3. At the time of hearing, only 4 items of complaint remained in issue. They are as follows: f. 22nd Street paving; g. Warehouse floor sealer; h. Numerous roof leaks in warehouse and offices; and i. Substandard first floor bathroom countertop installation.

Inspector Deem indicated on the CWO, that Marcus was to take appropriate corrective action only with regard to items a. and d. as indicated above. Inspector Deem further indicated with respect to items b. and c. as indicated above, that no corrective action was required of Marcus. During the course of the hearing, it was adduced that the roof leaks had been repaired by Marcus, however, the damage resulting from the leaks had not been addressed by Marcus. Marcus agreed at the hearing, that it will replace the damaged ceiling tiles and will repair the damage to the insulation caused by the leaks within 60 days of the hearing date. Marcus further agreed at the hearing, that it will repair the first floor bathroom countertop by appropriate means within 60 days of the hearing date. Regarding the paving of 22nd Street, the contract entered into by the parties indicates on page 5, in pertinent part: The street paving shall include the 12’ south bound lane of 22nd Street from the north property line to the center of the Rose Garden intersection.

See Complainant’s Exhibit 1. The property on which the facility is located was originally one large lot, which was divided into two smaller lots (the north lot and the south lot) prior to the building of the facility. Initially, the facility was to be built on the south lot. Subsequent to the contract having been entered into by the parties, Sunstate decided to change the location of the facility to the north lot, and advised Marcus of such change. Marcus did not indicate that there was to be any additional cost associated with the change, nor did it suggest any potential issues that could arise from the change in location. Additionally, Marcus was not relieved from any obligation to perform pursuant to the existing contract. Troy Hoberg, Marcus’ branch manager, testified at the hearing, that the paving portion of the contract was accomplished pursuant to plans and specifications, which were provided by Marcus. It is important to note that the plans and specifications were prepared subsequent to the above- described change and that the terms of the contract were never amended to reflect the verbal change in the facility’s location. The weight of the evidence of record established that Marcus did not perform the paving of 22nd Street as required by the contract. However, the evidence of record was insufficient to establish the dimensions and the cost to pave the area that remains unpaved. Further complicating the matter, is that a third party (Sunstate’s neighbor), may have already taken action to complete the paving of 22nd Street. Therefore, all of the circumstances presented preclude the undersigned Administrative Law Judge from recommending any reasonable condition to reduce any possible disciplinary action that may be imposed against Marcus for this violation. Pursuant to the blueprint requirements for the facility, Marcus was to seal the concrete floor of the facility with two coats of Griggs Acrylic Floor Sealer or its equivalent. See Complainant’s Exhibit 7. Inspector Deem testified that he could not discern whether an agreed upon sealer was used, therefore he indicated on the CWO that no action was required of Marcus. See Complainant’s Exhibit 3, page 2. However, the evidence of record established that Marcus did not utilize Griggs sealer or an equivalent. The evidence presented at the hearing was sufficient to support a finding that portions of the facility’s floor sustained staining. It is determined and held that such damage is directly attributable to Marcus’ failure to use Griggs Acrylic Floor Sealer or an equivalent product. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Marcus was advised that in the event of a finding of a violation against Marcus, Marcus’ prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of the official records of the Registrar of Contractors regarding any prior final disciplinary orders against Marcus, and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Marcus. Therefore, Marcus’ prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW In this proceeding, Sunstate bears the burden of proving by a preponderance of the evidence, that Marcus is subject to discipline for violations of A.R.S. §32-1154(A)(2), (3), (7), (13), and (23) as charged by the Registrar of Contractors in its August 28, 2000 Citation and Complaint. 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). The undersigned Administrative Law Judge concludes that with respect to the above deficiencies and the resultant injury sustained by Sunstate, that Marcus has violated the provisions of A.R.S. §32-1154(A)(2), (7), (13), (23) and (3),namely A.A.C. R4-9-108. Based on the foregoing violations, it is appropriate for the Registrar of Contractors to impose discipline against Marcus’ license. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B-01 license of Marcus shall be suspended until the Registrar of Contractors receives written proof that Marcus has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 7, 8, 13, and 14. It is further recommended that if Marcus accomplishes the above- described corrective work 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, December 6, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors 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