ALJDEC

00F-M1823-ROC · Registrar of Contractors · 2000-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2000

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Owner and Qualifying Party Dennis Tilley.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Louis and Olga Grzesiek allege that Respondent Dennis Tilley dba Strong Tie Construction has performed improper and unworkmanlike construction while building an addition to their park model mobile home in Casa Grande, Arizona. The project is not yet complete, but Complainants brought this complaint and stopped construction. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of provisional suspension. FINDINGS OF FACT 1. Respondent is the holder of a class B license (No. 130667) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction, including general remodeling and repair, but not certain specialty contracting such as electrical, plumbing, swimming pools, etc. (See, Arizona Administrative Code (A.A.C.) R4-9-103.) 2. In March 2000, Complainants and Respondent entered into a contract to build an addition to Complainants’ mobile home. The addition was designed and plans were drawn. By April, both the park and the County had approved the plans and the work began. In May, Complainants made changes that required Respondent to go back to the County and get approval. This caused some delay. In June, the project was progressing slowly but the parties were experiencing a significant clash of personalities and lack of effective communication. These problems came from both sides. Complainants were frustrated at the length of time the project was taking. Respondent was frustrated by Complainants presence on the jobsite, changes to the project that caused delay, and problems with delay in obtaining materials. By the end of June 2000, the relationship had deteriorated significantly and Complainants wanted out of the contract. They filed a complaint with the ROC on June 27, 2000. 3. An onsite inspection by ROC Inspector Ron Lamp was set for July 24, 2000. Respondent did some more work in July and presented Complainants with an invoice for changes that were made, including changes to windows. None of the changes had been reduced to writing as required in the contract. Also, in mid-July Complainants had an issue (dealing with electrical wiring and a ceiling fan) that they needed to work out with the park management that put part of the project on hold. 4. ROC Inspector Lamp observed the unfinished project and issued a Corrective Work Order (CWO) on July 25, 2000, that contained two items: “1. Properly repair deck and floor to be level” and “2. Complete project.” The CWO gave Respondent 15 days to comply. 5. On August 2, 2000, about one week after the issuance of the CWO, Respondent was hospitalized at the Tucson VA Medical Center until September 12, 2000. (Exhibit A.) Respondent’s wife wrote both to Complainants and to Inspector Lamp requesting an extension. Since Complainants had requested a hearing by that time, no action was taken on the request. 6. In September 2000, the Pinal County Chief Building Inspector rescinded the framing inspection because so many changes had been made. He noted that Respondent should be given a chance to make corrections on the project. In mid-September, Respondent sent letters to Complainants and the ROC stating that he was ready and able to complete the project when allowed back on the property. 7. At the hearing, Respondent stated that he did not dispute the CWO and he stands ready to complete the corrections and the project. Complainants, however, do not want Respondent to finish the project. They argued that Respondent is incompetent to complete the project, but did not provide any objective and substantial evidence of incompetence. Also at the hearing, Respondent agreed that he would not seek recovery of change orders that were not in writing. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant have met that burden with respect to workmanship only. 2. The evidence shows unworkmanlike results with the floor and the incomplete job. Respondent agrees to perform the corrections and complete the project as ordered in the CWO. Therefore, there is no dispute about the contents of that order. Rather, the issues left for determination are whether Respondent is incompetent to perform the corrective work and whether Respondent’s failure to comply with the CWO was excusable. 3. As noted above, the record does not support a finding that Respondent is incompetent to correct the work and finish the project. Therefore, Respondent should be ordered to comply with the CWO. If he does not, his license should be suspended. Also, the record shows that Respondent’s failure to comply with the CWO was excusable, given his hospitalization and the other circumstances surrounding the project. Therefore, no civil penalty is warranted. 4. Finally, Respondent and Complainant are advised to reduce any approved changes to writing. This will avoid misunderstandings and misinterpretations.

RECOMMENDED ORDER IT IS RECOMMENDED that Class B license 130667, held by Respondent Strong Tie Construction be suspended beginning the effective date of the Registrar’s Order until Respondent has corrected or caused to be corrected in a workmanlike manner the items listed in the July 25, 2000, Corrective Work Order. IT IS FURTHER RECOMMENDED that if Respondent completes the corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place.

Done this 28th day of December 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 2000, to:

Michael P. Goldwater ATTN: Joyce Armijo Registrar of Contractors 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