ALJDEC

00F-T0827-ROC · Registrar of Contractors · 2000-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, October 3rd, 2000; 9:00 a.m. APPEARANCES: The complainant, Resurrection Lutheran Church, was represented by the church’s designated representative and member of its Building Committee, Mr. Harvey Deardorff. The respondent, Ariwest, Inc., was represented by its owner, Mr. Fred King. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted 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, Ariwest, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class A License number 074443. 2. The respondent and the complainant, Resurrection Lutheran Church, contracted with each other on or about May 28th, 1998, for the respondent to construct a parking lot for the church on its church site. The contracted work included site preparation, a retention basin, rip rap, curbs, header, and walkways. The contract amount exceeded $50,000.00. Respondent completed his work on or about March 15th, 2000. 3. When the Town of Oro Valley, Arizona inspector inspected the site after respondent’s work, the complainant was notified by the town of various aspects of the respondent’s construction which were not pursuant to the plans. Complainant filed the instant complaint with the registrar on or about May 5th, 2000. 4. The complaint was assigned to Registrar of Contractor’s Inspector Mr. Bob Gibson for investigation in the normal course of the registrar’s duties. Inspector Gibson conducted a job-site inspection of the parking lot on May 24th, 2000. Based on his inspection, he issued a Corrective Work Order to the respondent. The CWO was dated June 20th, 2000, and directs the respondent to correct four aspects of the work within 30 calendar days of the order, with all work to be pursuant to applicable codes, industry and minimum workmanship standards. 5. The four aspects cited by Inspector Gibson are: “1. The south west [sic] side of the parking lot does not drain per approved drainage plan. Correct appropriately. 2. Install orifice plate on drainage pipe and silt fencing per contract agreement and as specified by local building authority. 3. Install three handicap parking spaces per contract agreement. 4. Correct island and install rip rap at retention basin per approved contract drawings.” 6. Respondent returned to the site and corrected some of the deficiencies cited by the inspector, but in the complainant’s opinion failed to make all corrections. Complainant requested an administrative hearing on July 25th, 2000. The Citation and Complaint was issued from the registrar on August 11th, 2000. Respondent filed his written response to the Citation and Complaint on August 15th, 2000. 7. The complainant appeared at the hearing through Mr. Harvey Deardorff, a member of the complainant’s Building Committee, and designated representative of the church. The respondent appeared through Mr. Fred King, President of Ariwest, Inc. Inspector Gibson appeared also. These three gentlemen testified. 8. Inspector Gibson testified to his opinion that item #1 of his CWO had not been corrected; item #2 was corrected; item #3 had been abandoned by the complainant as an item of contention, and item #4 had not been done, but the Town of Oro Valley has approved the present condition of that work. 9. Through the testimony of Mr. Deardorff it was established that the complainant remains adamant in its demand that the drainage of the parking lot be corrected. The west side of the lot was supposed to have been constructed in a concave fashion according to the plans, so as to allow for proper drainage. It was not, and now does not properly drain. The Town of Oro Valley is still holding $2,600.00 of the church’s money until this problem is corrected. The only other item complainant still maintains is not corrected is a portion of item #4, that is, correction of the island in the parking lot. Because the respondent had constructed the island larger than the plan’s call, it necessarily reduced the size of the parking lot by the same amount of size. 10. Mr. King testified, but did not successfully rebut the evidence of the complainant and Mr. Gibson. Nor did he produce evidence of any reasonable justification for not having made these last two corrections.

11. A preponderance of credible evidence supports the complainant’s claim that item #1, and the portion of item #4 addressing the size of the island, are defective and/or not according to the plans, and must be corrected. All work should be done pursuant to all applicable codes, industry and minimum workmanship standards. 12. 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 respondent herein is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.23., prohibits a licensed contractor from failing to take appropriate corrective action to comply with the state’s contractors’ laws without valid justification, within a reasonable period of time, after receiving a written directive to do so from the registrar. 4. The preponderance of evidence of record supports the conclusion that respondent violated A.R.S. §32-1154.A.23, in failing to correct the drainage problem and the island problem, all as set forth in the inspectors CWO. The CWO is a written directive from the registrar, and it allowed a reasonable amount of time for its compliance. No valid justification for the failure was offered. 5. A.R.S. §32-1154.A.3., prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited by the registrar in the Citation and Complaint is A.A.C. R4-9-108. That rule addresses workmanship standards. It requires all work of a contractor to be done in a professional and workmanlike manner, and in accordance with all applicable building codes and industry standards. Respondent’s work relative to the improper curvature of the lot for drainage purposes and the over-sizing of the island in the lot, violate this rule, and thereby violate A.R.S. §32-1154.A.3. 6. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent activity in connection with his or her work as a contractor which substantially injures another person. There is no suggestion of fraud on the part of the respondent. There is no evidence of wrongful activity on the part of the respondent independent of the violations of A.R.S. §32-1154.A.23., and 3., already concluded to have occurred. RECOMMENDED ORDER Wherefore, it is hereby recommended that the respondent’s Class A License number 074443 be indefinitely suspended until such time as the registrar receives proof that the respondent has appropriately corrected item #1, and item #4 pertaining to the island, as set forth in the Corrective Work Order. It is further recommended that if the registrar receives proof that the respondent has corrected these two items, on or before the effective date of this order, that the above-provided license suspension shall not take place, and Citation and Complaint number T00-0827 shall be closed. Done this day, October 13th, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of October, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488