ALJDEC

01F-2269-ROC · Registrar of Contractors · 2001-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2001. APPEARANCES: Complainant Michael Foye appeared personally. Respondent appeared through its qualifying party, Ricardo Larios. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Respondent is the holder of License No. 151643, a Class C-21 Landscaping and Irrigation Systems contracting license, issued by the Registrar of Contractors. 2. On or about November 16, 2000, the parties entered into a written agreement for Respondent to perform certain demolition, hardscape, landscape and irrigation work for a contract price of $22,097.00. 3. The parties’ written agreement provided that Respondent would perform the following demolition work:

a) Demolition of rear landscape. b) Side yard flagstone and rock walls demolition. c) Saltillo demolition at small patio. d) Hauling and disposal.

4. The scope of the hardscape work for the outdoor courtyard included the following:

a) Concrete exposed aggregate paving. b) Decorative wall (5’ X 8’) with stucco and paint. c) Raised planters (18’ X 30”) with brick tops. d) Brick paving at barbecue courtyard. e) Barbecue countertop, (6’ X 3’) brick top design. f) 3 burner barbecue with door and propane tank (6’ X 3’). g) Lanterns at barbecue including wiring and hook-up.

5. The scope of hardscape work for the fire ring included the following construction items:

a) Concrete pad of exposed aggregate. b) Brick veneer at edge rim c) Fire pit: smooth stucco and brick top with fire brick.

6. The following additional hardscape work was to be performed by Respondent:

a) Columns with stucco and paint. b) Trellis at spa, 2’ X 4’ construction with paint. c) Electrical at columns for future lanterns. d) Side yard walkway made of exposed aggregate paving. e) Brick retaining walls (3 courses each). f) Flagstone stepping stones (3 square feet each). g) Dog run made of exposed aggregate paving. h) Wall fountain with tile veneer, pump, tile border. i) colored concrete, mower-style curbing.

7. The landscape work consisted of planting one and five gallon shrubs, accent plants, 15 gallon trees, 24” box Palo Brea trees, and the placement of decomposed granite decorative rock. 8. The irrigation work involved the installation of a 1¾” valve drip irrigation system with 5/8” Toro line and the retro-fit of a ¾ “ sprinkler system. 9. The parties later modified the original scope of work with a series of written change orders. 10. On or about March 13, 2001, Complainants filed a complaint with the Registrar of Contractors alleging that Respondent had violated the provisions of the State’s contracting laws as to 25 listed workmanship items. 11. On or about March 23, 2001, the Registrar of Contractors’ assigned agency inspector, Joe Cotten, performed a jobsite inspection at Complainants’ residence to view the areas of Respondent’s alleged deficient workmanship. 12. On or about March 27, 2001, Inspector Cotten issued a Corrective Work Order directing Respondent to timely perform certain enumerated remedial repairs to its deficient workmanship. The written directive also required Respondent to pull the necessary building permit(s)[1] for the electrical and plumbing work performed on this project. 13. On May 22, 2001, Respondent’s electrical and plumbing work was “red tagged” by the local building authority. 14. On September 4, 2001, Inspector Cotten performed a prehearing jobsite inspection to prepare for the instant hearing and to view Respondent’s compliance with the Corrective Work Order. 15. As a result of the prehearing inspection, Inspector Cotten discovered that Respondent failed to pull the necessary building permit(s). A permit was required for Respondent’s propane plumbing work for the fire pit. The fuel source for the fire pit is a standard 5 gallon propane tank plumbed to the burner in the fire pit. Inspector Cotten noted that a key valve had not been installed but instead a ball valve had been used. The installation of the fire pit and its propane fuel supply plumbing should have been performed by a licensed plumbing contractor and then inspected by a local building inspector. Such an inspection requires that the pipe installed be open for viewing by the inspector and pressure tested at 10 p.s.i. for 24 hours. 16. A permit was also required for Respondent’s electrical work. Respondent installed non-energized unwrapped electrical wiring inside existing columns with a Jay box for future use by Complainants. Such work is found to require an inspection by the local building authority. 17. Respondent’s electrical and plumbing work exceeded the scope of its Class C-21 license. 18. It is determined that the non-load bearing propane tank floor requires an inspection by the local building authority. 19. Complainants’ sod lawn installed by Respondent has noticeable high and low spots. Respondent is deemed responsible for properly performing remedial repairs to remove such deficiencies as ordered by the Registrar’s written directive. 20. Respondent is responsible for pulling all necessary permits for the work performed on this project at its sole cost and expense. 21. Respondent shall, at its sole cost and expense, cause any additionally required plumbing and/or electrical work to be performed by appropriately licensed contractors. 22. Respondent’s failure to pull the necessary permit(s) for the electrical and gas work performed on this project is found to have caused a safety hazard. 23. Because Respondent failed to complete the above-described items, Respondent is found not to have substantially complied with the Registrar’s Corrective Work Order. 24. Respondent’s above-described acts and omissions are deemed to be wrongful acts which have substantially injured Complainants. 25. Complainants have withheld the sum of $1,230.00 from Respondent due to the latter’s failure to comply with the remaining remedial work ordered by the Registrar. Complainants’ retention of those funds is not a defense for Respondent not to perform, or cause to be performed, the above- described remedial work. 26. Any allegation contained in the Complainants’ complaint that is not specifically addressed above is deemed either to have been properly corrected to minimum workmanship standards by Respondent, or to lack sufficient evidence of record to establish that Respondent has violated a provision of the State’s contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(2), (7), (23) and (3); namely A.A.C. R4-9-108. 2. Pursuant to the provisions of A.R.S. § 32-1154(D), the Registrar of Contractors may impose a penalty not to exceed $500.00 on a contractor for each violation of A.R.S. § 32-1154(A)(23). In light of Respondent’s failure to substantially comply with the Registrar’s written directive, especially as to the electrical and gas installations, it is determined that good cause exists for the Registrar to impose a civil penalty on Respondent. … … …

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that Respondent’s Class C-21 license be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished the following items:

a) Respondent has pulled all required permits from the local building authority for its scope of work on this project. b) Respondent has had any required inspections performed by the local building authority. c) Respondent, at its sole cost and expense, has caused properly licensed electrical and plumbing contractors to make the respective areas of work open for inspection by the local building authority, to make any repairs required by such inspection(s) and to close those areas of work. d) Respondent has repaired Complainants’ sod lawn as required by the Corrective Work Order, the terms of which are incorporated herein by reference.

It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the entered Order in this matter, then the above-provided license suspension shall not take place. It is further recommended in addition to the foregoing license suspension, if any, that Respondent’s Class C-21 license be placed on probation for a period of 120 days commencing on the effective date of the entered Order in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of that civil penalty on or before 30 days following the effective date of the entered Order in this matter shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. It is further recommended, in addition to the above-provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided Done this day, September 27, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ ----------------------- [1] There is no evidence of record as to whether applicable construction work requiring a permit could be included in one permit or if each type of work needed a separate permit.

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