ALJDEC

00F-T0207-ROC · Registrar of Contractors · 2000-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, February 23rd, 2000; 1:30 p.m. APPEARANCES: The Complainant, Ms. Rita Garcia, represented herself. The Respondent, Mr. Gary Boemer, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing before the Office of Administrative Hearings (OAH), Tucson, on February 23rd, 2000. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein is Mr. Gary Boemer, a contractor licensed by and doing business in the State of Arizona as G S I Construction. Respondent holds Class B-05 License Number 127534. 2. The Complainant herein contracted with Respondent on or around May of 1999. The agreement was for Complainant to pay Respondent $7,400.00 in exchange for Respondent constructing in Complainant’s Tucson, Arizona residential yard a spa and cool deck, complete with accompanying benches and planter boxes. 3. Respondent had assured the Complainant that the work would be completed within seven days after he received the first check towards full payment. Complainant began giving Respondent substantial amounts towards the contract price in late May, shortly after the agreement was made. Respondent was reluctant to accept Complainant’s personal checks as a method of payment, preferring to be paid in cash. 4. Although Respondent began the work, the progress was slow, and at times there was no progress at all. Respondent had a pattern of practice of not appearing at the work site when he was supposed to be there, and not returning phone calls from Respondent. 5. There was much testimony on both sides about the impediment to the construction progress presented by the Complainant’s guard dog, who ordinarily lives in the back yard, where the construction was taking place (or not taking place). Complainant does own a large dog which is very protective. Both parties concede that it would be unreasonable to expect strangers to come onto the property for any reason while the guard dog is loose in the yard. However, Respondent overly relies on this circumstance as justification for his excessive foot-dragging on this project. There were several occasions evidenced by the record of the Complainant having received assurances from the Respondent that he would arrive to work on a particular day and time. Relying on Respondent’s assurances, the Complainant would put the dog in the house or a pen, only to be frustrated when no workers appeared. All this after she had rearranged her schedule and gone out of her way to make it convenient for the Respondent to perform under the contract. 6. When September, 1999 arrived and the work was still uncompleted, Complainant became exasperated to the point she filed a complaint with the Registrar of Contractors. She filed amendments to the complaint which were ordered by the Registrar to be added to the original complaint by Order dated January 5th, 2000. The amendments essentially are additional remarks of the work not being complete and the need for the site to be cleaned. To date, she has given Respondent $6,500.00 of the $7,400.00 contract price. 7. Mr. James B. Morris, Registrar of Contractor’s Inspector, was assigned to the case. He performed a job-site inspection, and issued a Corrective Work Order to the Respondent dated October 15th, 1999. Mr. Morris’s Order directed the Respondent, in short, to finish the job and do a final clean-up of the job-site. Mr. Morris confirmed that the work was not near completion. Mr. Morris also directed the Respondent to obtain the necessary permits and final inspection from the local building authorities, which had not been obtained. All work was to be done by appropriate means, of course. Compliance with the Order was to be realized within fifteen calendar days from its date. 8. Mr. Morris conducted a pre-hearing job-site inspection the morning of this administrative hearing. That inspection confirmed to him, as he testified, that the project was still uncompleted. This time being longer than four months after the original job-site inspection and issuance of the Corrective Work Order. As Mr. Morris testified, and as was corroborated by photographic evidence, the testimonies of the Complainant and her adult daughter, and uncontradicted by the Respondent, the job unto this day remains substantially uncompleted. Respondent has not re-topped the cool deck at the spa area on the west side of the house, or northeast corner of the cool deck; has not completed construction of the masonry benches at the southeast and southwest corners of the deck, and naturally no final clean-up has occurred due to the job not being completed. It was also evident that proper final permitting and inspection by the local authorities had not been obtained. 9. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. This hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The Citation and complaint issued herein charges the Respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.23., prohibits a contractor from failing to take appropriate corrective action to comply with the contractor’s laws without valid justification within the time frame set forth in the written directive from the Registrar, in this case the Corrective Work Order. The Corrective Work Order gave Respondent fifteen days to complete this project. Not only has Respondent failed to complete the project within fifteen days, he has failed to complete it yet. The evidence contains no valid justification for this failure. Respondent has violated A.R.S. §32-1154.A.23. 4. A.R.S. §32-1154.A.3., prohibits a contractor from violating any rule adopted by the Registrar, and in this case the rule cited in the Citation and Complaint is Rule 4-9-108, Workmanship Standards. Respondent’s performance in this contractual obligation he undertook was unprofessional. He took Complainant’s money and dragged his feet for months without completing the work. He failed to return phone calls. Respondent violated the workmanship standards. 5. A.R.S. §32-1154.A.7. prohibits a contractor from any wrongful or fraudulent act as a contractor which substantially injures another person. There is no evidence of fraud on the part of Respondent in this case, but his not returning phone calls, and breaking pre-arranged appointments to appear and work on the project, caused substantial injury to the Complainant in that she was forced at great inconvenience to herself to try to accommodate Respondent, only to have him be non- responsive in every way. Respondent violated A.R.S. §32-1154.A.7.

RECOMMENDED ORDER

Wherefore, it is hereby recommended that the Respondent’s Class B-05 License be suspended until such time as he completes the spa and decking project at Complainant’s residence as set forth in the Corrective Work Order. It is further recommended that if the Respondent properly accomplishes the above-described corrective work on or before the effective date of this Order, then the above-provided indefinite license suspension shall not take place and this Citation and Complaint shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $150.00 to the agency by way of a civil penalty pursuant to A.R.S. 32-1154.D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of this Order shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No further license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101.A.5., unless payment of any outstanding prior civil penalty is tendered. Done this day, March 3, 2000.

______________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488