ALJDEC

01F-2300-ROC · Registrar of Contractors · 2001-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2001 APPEARANCES: Complainant John F. Bomenka Sr. appeared, representing himself. Respondent Hector Xavier Sandoval for Sandoval Masonry did not appear, nor did any person arrive on his behalf. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent’s license should be subject to discipline according to the alleged violations as cited in the Citation and Complaint issued by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Sandoval Masonry is a specialty contractor licensed for installation of stone, structural glass, brick, block, baked clay and other common masonry products with or without mortar. The qualifying party is Hector Xavier Sandoval. 2. Complainant contracted with Sandoval Masonry through Adam Sandoval in February 1999 for a block wall pool enclosure. Adam Sandoval executed the contract with Complainant. 3. The work was completed in April 1999 and, almost immediately, Complainant noticed problems with the work. Complainant called Adam Sandoval eleven times and each time Mr. Sandoval promised to come out but did not . Mr. Sandoval finally came out in December 1999, and promised to come back in January 2000, but never did. 4. In March 2001, Complainant filed a formal complaint with the Registrar concerning Respondent’s workmanship and the problems at Complainant’s residence. Complainant apparently also filed a second complaint in April 2001 with additional or new allegations regarding Respondent’s workmanship. 5. The Registrar’s Inspector Mel Purchase conducted an on-site inspection and, on April 9, 2001, issued a written corrective work order (CWO) on the two complaints. The CWO directed Respondent to perform designated corrective work. 6. Additionally, Registrar notified Respondent of its information received indicating that Respondent was performing or offering to perform work which would be covered under the scope of a different class of license than Respondent’s license. 7. On April 30, 2001, the Registrar received Complainant’s letter indicating that Respondent had not contacted him or made any effort to correct the work. 8. On May 31, 2001, the Registrar issued its Citation and Complaint in this matter indicating the alleged violations of Arizona Revised Statutes (A.R.S.) §§32-11541.A.2; 32-1154.A.3; 32-1154.A.7; 32-1154.A.17; and 32-1154.A.23. Statutory requirements call for a respondent to file a written answer within 10 days. 9. On June 21 or June 22, 2001, Respondent Hector Sandoval filed a written answer to the Complaint. Respondent stated that he had assumed the situation was resolved, that the work had been performed by Adam Sandoval, and that this was a misunderstanding between he and his father (presumed here to be Adam Sandoval) about using Respondent’s license. Respondent stated that he was not using the license and had not given anybody permission to use the license. 10. The Registrar issued its Notice of Hearing in this matter on July 31, 2001, setting the matter for hearing to be held on October 15, 2001. At the time set for hearing, and for the duration of the hearing held, Respondent did not arrive for the hearing. Therefore, no evidence was presented to the tribunal on his behalf for consideration. 11. Complainant presented uncontroverted testimony and photographic evidence regarding minor, major and structural problems with both the block wall and the block and tile-roofed pool enclosure. 12. The Registrar’s Inspector presented uncontroverted testimony of all the workmanship problems he observed at the site. The Registrar’s Inspector testified that numerous cracks throughout the walls and the stucco work, especially in the walls around and near the tile-roofed enclosure, were workmanship problems. The Registrar’s Inspector testified that the fencing block used for the enclosure cannot hold the weight of the roof, and that there are evident gaps and cracks in the structure. The Registrar’s Inspector testified that the weight of the roof is pushing out the walls and the rafters are being pulled apart. The Registrar’s Inspector testified that the stair stepping cracks also indicate footings not being wide enough. The Registrar’s Inspector testified that the whole structure has to be taken down and redone. The Registrar’s Inspector also testified that the work done under this license was out-of-scope because the Respondent’s license only allows masonry work to be done. APPLICABLE LAW Arizona Administrative Code (A.A.C.) R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of. Arizona Revised Statutes (A.R.S.) §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 2. Departure from or disregard of plans and specifications or any building codes… xxx 3. Violation of any rule adopted by the Registrar. xxx 7. The doing of a wrongful or fraudulent act … resulting in another person being substantially injured. xxx 17. Knowingly contracting beyond the scope of the license … xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar...

CONCLUSIONS OF LAW 1. Competent and credible testimony and evidence showed Respondent’s workmanship to be in violation of workmanship standards and building codes. The hearing testimony and evidence showed violations of A.R.S. §§32- 1154.A.2, 32-1154.A.7 and 32-1154.A.17. Additionally, a respondent’s failure to make the corrective actions which were designated in a Registrar Inspector’s CWO is a violation of A.R.S. §32-1154.A.23. The hearing testimony and undisputed evidence shows that Respondent has not completed the corrective work, and that the work done does not meet workmanship standards. Therefore, it is determined that Respondent is also in violation of A.R.S. §§32-1154.A.23 and 32-1154.A.3, namely A.A.C. R4-9-108.

2. The totality of the testimony and undisputed evidence in this case supports the conclusion that Respondent was working outside the scope of the Class C-31 license at Complainant’s home.

RECOMMENDED ORDER 1. In view of the foregoing, it is recommended that the Respondent’s Class C-31 License shall be Revoked until the Registrar of Contractors receives proof that the Respondent has, using appropriately licensed contractors, properly removed the structure and walls built, prepared the site, and completed the contract work according to all applicable building codes and workmanship standards. 2. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of the Registrar’s Order, then the above provided license revocation shall not take place and Citation No. 01-2300 shall be closed. RECOMMENDED and DATED this day: October 30, 2001.

______________________________________ Kay A. Abramsohn Administrative Law Judge

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

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

By ___________________________ -----------------------

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