ALJDEC

00F-P0027-ROC · Registrar of Contractors · 2000-04-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2000.

APPEARANCES: Complainant, Edward Rogers, appeared in his own behalf.

Respondent, Coconino Fence Co., appeared through its owner and qualifying party, Magdaleno Frank Gonzales.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Pursuant to a written proposal and contract, Respondent agreed to and did construct approximately 206 lineal feet of wood fencing on Complainant’s property. The agreed and subsequently adjusted cost price of $4,500.00, was fully paid by Complainant to Respondent.

2. The specified wood materials were to consist of redwood pickets, and the posts were to be schedule 40 steel columns, spaced 8-feet apart and set in concrete footings 2-feet deep.

3. Credible evidence revealed that the concrete depth of the originally constructed footings beneath the fence posts was inconsistent and was generally less than the contractually specified 2-feet. Additionally, significant quantities of the individual pickets were shown to be substandard for various reasons, including loose or excessive knot holes, voids or cracks where material had fallen out and instances where smooth and rough sawn sides of the picket surfaces were used for the same surface facing rather than being installed with a uniform surface appearance on each respective side.

4. Following the first of several separate jobsite visits by the Registrar’s assigned Inspector, a written corrective work order was issued to Respondent indicating a need to replace approximately 170 individual pickets. No deficiencies were confirmed at that time with respect to the setting or securing of the steel fence posts. Before any remedial efforts had commenced, a second corrective work order was issued by the Inspector after another jobsite visit, such subsequent directive requiring correction of an insufficient footing depth problem demonstrated to exist under the steel posts.

5. The parties subsequently engaged in discussions with respect to alternative approaches to resolving the problems. Ultimately it was mutually agreed that Respondent would provide additional steel posts set in between the existing original posts that were 8-feet apart so that the fence would be supported by posts that were 4-feet apart. No details were specified as to the footing depth or overall size for these additional posts.

6. The remedial work envisioned under the corrective work orders, as modified by the parties’ express agreement, was performed by Respondent. The holes for the added steel posts were dug on an angle, resulting in less width of concrete at the ground surface level. Such treatment is not found to have rendered the added footings deficient or substandard, especially since no new or separate specifications for this remedial work were formulated or agreed upon.

7. Complainant did not sustain his burden of proving that the present condition of either the footings or the posts was improper. On the contrary the evidence tended to indicate that the posts were not loose or unstable. To the extent that the originally constructed footings did not meet the contractual specifications, it must be held that any such deviation was neither material nor prejudicial. In any event, the parties’ subsequent mutual agreement with respect to remedial work alternatives would effectively modify the original contractual specifications. In this case, the addition of extra posts at 4-foot intervals was shown to have more than compensated for any deficiency in the originally poured concrete footings in which the original posts were embedded.

8. Despite the fact that 170 picket units had been initially reported as deficient, a quantity substantially confirmed in the Inspector’s directive, Respondent was shown to have replaced significantly more than 170 pickets, maintaining that the extra replacement total included some marginally acceptable materials. In point of fact, the replacement work encompassed almost one-half of the originally installed separate pickets. Nevertheless, Complainant asserted and fully believed that many more pickets were deficient and substandard.

9. Depending upon equally credible testimonial variations as to the overall extent of Respondent’s replacement work, it appeared that no less than 250, and more

likely a total figure approximating 300 original pickets, were actually replaced. Complainant still insists that over 100 more pickets are in need of replacement while Respondent feels that no further replacements are necessary. It did appear from a recent inspection that no more than four or five pickets still contained deficiencies, two with excessive cracks in knots above the stringer on the East section and two with voids in the knot- hole locations on the North section. Additionally, a replaced horizontal stringer on the North side was shown not to have been properly re-secured and re- attached. These remaining deficiencies must be appropriately corrected by Respondent’s removal and replacement of the identified pickets, irrespective of whether such pickets were ones that were previously replaced or were the originally installed units. The insufficiently attached stringer must also be properly secured.

10. The relatively few individual pickets presently in need of further remedial work are not found to mandate any finding of non- compliance with the spirit and intent of prior written directives from the inspector within the meaning of another code section of the State’s contracting laws charged as having been violated by Respondent.

11. Complainant’s testimony indicated his strong belief that the extent and degree of imperfections in the wood materials furnished by and utilized by Respondent on this project were aesthetically unacceptable. The documentary evidence also tended to reveal some differences in opinion as to acceptability reported by other contractors who were competitors of Respondent. It must nevertheless be held that, notwithstanding a high degree of personal dissatisfaction on the part of Complainant with the present condition and appearance of a great many remaining pickets, it was not adequately demonstrated that such condition or appearance of any but a very few of the present pickets was unacceptable according to prevailing industry standards and tolerances.

12. To impose an obligation upon a contractor to insure that the final appearance of its resulting work will meet a homeowner’s own personal aesthetic standards would be an impractical and unduly onerous burden in view of the high degree of subjectivity involved. The workmanship provisions of the State’s contracting laws were not intended to subject the license of a contractor to possible disciplinary action for failure to satisfy the individual tastes of all potential customers.

CONCLUSIONS OF LAW

1. While the overall result of most all visible construction work will generally have an impact in the determination of what constitutes proper, acceptable workmanship, the Complainant did not sustain his burden of establishing by a preponderance of reliable, substantial and probative evidence that the fence materials used for the pickets were of a substandard quality and appearance so as to adversely reflect on Respondent’s workmanship, except for the very few slats shown presently to be in need of replacement.

2. With respect to the few pickets presently remaining in need of replacement, as well as to the horizontal stringer in need of proper securing, the evidence of record supports a determination that, by failing to fully and timely correct these deficiencies, Respondent has committed a wrongful act to the detriment of Complainant[1] in violation

of the provisions of A.R.S. §32-1154(A)(7). However, no violation by Respondent of A.R.S.§32- 1154 (A)(23) was sufficiently proven hereunder.

RECOMMENDED ORDER

In view of the foregoing it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class C-14 license be suspended until the Registrar receives proof that Respondent has removed and replaced the few substandard pickets and has secured the improperly attached stringer, as more fully set forth in Finding of Fact Number 9.

It is further recommended that if Respondent accomplishes the above- described corrective work in a proper, workmanlike manner on or before this Order’s effective date, or if Respondent is unable to accomplish such work because of Complainant’s unwillingness to accept the same or his failure or refusal to grant Respondent reasonable and timely access to the premises, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number P00-0027 shall be closed.

Dated: April 14, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

Attn: Joyce Armijo ----------------------- 1. Although the essence of the within complaint, as filed and subsequently amended, did expressly relate to and identify issues or disputes as to compliance with contractual specifications (depth of footings) and as to workmanship standards (selection and installation of wood materials) the Citation that was issued in this case did not charge violations of A.R.S. §32-1154(A)(2) or (3); namely the workmanship rule contained in Rule R4-9- 108, A.A.C. However, from a due process standpoint, even if other code sections may have been more appropriately identified in the issued Citation, Respondent was fully on notice of what the complaint items were and was adequately prepared to defend against all allegations. The wrongful act charges under A.R.S.§32-1154(A)(7) sufficiently encompass the alleged wrongdoing with respect to the asserted fence deficiencies.

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