ALJDEC

01F-L0236-ROC · Registrar of Contractors · 2002-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, January 16th, 2002; 1:30 p.m. APPEARANCES: The complainant, Mr. Gordon Schafer, represented himself. The respondent, C B Development, Inc., was represented by Mr. Jim Carlo, Vice President. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings, in Lake Havasu City, Arizona. Testimony was heard and other evidence admitted to the 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, C B Development, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B- License number 082893. 2. The respondent was performing work as a contractor on April 5th, 2001, in Lake Havasu City, Arizona, when one of its trucks being used in performance of that work was driven over the complainant’s concrete driveway. When the truck went over the complainant’s driveway it broke the concrete. 3. Complainant immediately notified the respondent about the damage done, and respondent, through its Vice President, Mr. Jim Carlo, accepted responsibility and assured complainant that the company would replace the driveway at once. Complainant made no mention to Mr. Carlo in this conversation about damage to an existing PVC pipe that had been under the driveway. 4. Complainant did not give the respondent more than two days before he filed an administrative complaint with the Registrar of Contractors on May 31st, 2001, in which he complained of the damage to his driveway. In his complaint the complainant stated merely that the “truck drove over my property at 1204 Kibbey Dr., braking [sic] my conerete [sic] driveway.” The complaint made no mention of any damage to a PVC pipe that had been under the driveway. 5. The complaint was assigned to Registrar of Contractors Inspector Cliff Corlett. Inspector Corlett conducted a job-site inspection of the complainant’s driveway on June 12th, 2001. The respondent was present at the job-site inspection through Mr. Jim Carlo. Without hesitation Mr. Carlo then and there re-stated his previous agreement to remove and replace the complainant’s damaged driveway. The complainant was not present at the job-site inspection, but his wife was there in his stead. She made no mention to the inspector or anyone else about damage to a PVC pipe that had been under the driveway. The inspector issued a Corrective Work Order to the respondent on June 19th, 2001. The CWO ordered the respondent to perform in accordance with his agreement, as well as to make final clean up and restore the grade to its former condition. 6. Although the CWO allotted the respondent 15 calendar days from its date, June 19th, 2001, in which to perform the corrective work, the inspector wrote in the CWO at paragraph #2 that the complainant had telephoned him that day to inform the inspector that the respondent had already removed and replaced the concrete, and only the final clean up and grade restoration remained to be completed. The complainant at that time made no mention to the inspector about the failure of the respondent to replace a PVC pipe that had been under the driveway. 7. Mr. Bob Stidd testified at the hearing. He was in the crew who actually performed the removal and replacement of the concrete driveway. His testimony added to the weight of the evidence against the existence of a PVC pipe. He testified that there was no PVC pipe seen at the job-site while the repair work was being performed. 8. Complainant uttered no complaint to anyone about respondent failing to replace a PVC pipe that had been under the driveway until after the respondent had poured the new concrete driveway. Inspector Corlett testified that he heard nothing about a PVC pipe from anyone until the complainant mentioned it to him on June 22nd. 9. Mr. Carlo testified that no one mentioned to him any word about a PVC pipe at the job-site inspection, or when the crew was on site to replace the driveway. 10. Complainant requested an administrative hearing on his complaint. His letter to the Registrar of Contractors dated July 5th, 2001, states in part that the respondent did not replace a 1” PVC pipe that was under the driveway. 11. A citation and complaint was issued from the registrar’s office on August 10th, 2001, citing the respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 12. Respondent filed its written answer to the citation and complaint on August 22nd, 2001, denying the existence of any PVC pipe. 13. This administrative hearing was held in Lake Havasu City on January 16th, 2002. 14. Complainant produced as part of his evidence a videocassette recording of the driveway after respondent had completed the work. Just off to one side of the driveway there appears to be sticking up from the dirt a short length, four or five inches, of 1” PVC pipe. One viewing the video cannot see whether the PVC pipe extends to any length below ground. 15. The greater weight of evidence is that there was no PVC pipe under the driveway at the time the respondent’s truck damaged the driveway concrete. 16. Inspector Corlett conducted a pre-hearing inspection on January 9th, 2002, and found, as he testified, that the respondent had complied with all aspects of the CWO. All work was seen by the inspector to meet industry and workmanship standards. 17. The greater weight of evidence proves that the respondent did nothing after damaging the complainant’s driveway other than immediately accept responsibility for its actions; agree to replace the damaged driveway, restore the grade, and clean up the area; and promptly perform all of the above in a professional and workmanlike manner. 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. §32-1154A.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 contractor laws of the State of Arizona, without valid justification, within a reasonable amount of time, after receiving a written directive from the registrar to do so. The written directive in this case was the CWO. The evidence proved that the respondent complied with the CWO in a timely manner, and with the biggest part of it before the CWO was even issued. 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this citation and complaint is A.A.C. R4-9-108, Workmanship Standards. The greater weight of, and indeed almost all, the evidence proved that the respondent’s repair work was completely professional and met all workmanlike standards. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no allegation and no evidence of fraud. The only wrongful act of respondent was inadvertently damaging the complainant’s driveway, but this did not substantially injure anyone, since the respondent timely corrected the damage in a professional and workmanlike manner. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint number L01-0236, together with the complaint on which it is based be dismissed. Done this day, January 31st, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002, 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