ALJDEC

01F-M0268X-ROC · Registrar of Contractors · 2001-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: This matter came on for hearing over the course of two days, commencing on February 22, 2001and concluding on April 16, 2001. APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president, Sam Whatcott (note for the purpose of the instant hearing both licenses set forth in the case caption shall be referred to as Respondent). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainants retained Respondent for the purpose of constructing new perimeter block wall fencing on their property. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainants averred that only the east wall is at issue in the instant hearing. It is important to note that prior to Respondent coming on the project, there was an existing block wall fence on the south side of the property which was constructed by the developer of the subdivision. Complainants contend that the contract required Respondent to build the east wall to match the existing fence, except that the pilasters were to be visible only on the neighbors side of the wall, as opposed to facing into their yard in the manner in which the pre-existing south wall was constructed.

3. Evidence of record demonstrated that a permit, from the local building authority, was required to build the offset pilaster wall on Complainants’ property. Notwithstanding this requirement, no such permit was obtained prior to construction.

4. Respondent contends that he knew a permit was required to build the wall but that he was led to believe by Complainant and the general contractor on the project that the permit had already been issued. Based on this information he failed to either obtain the permit or verify that same was in existence.

5. Evidence of record demonstrated that the local building authority will not issue a permit on the wall in question, at this time, due to the fact that it has not received appropriate engineering and design information on the wall and sufficient information to determine that the construction is proper for the type of soil present in Complainants’ subdivision. Thus, as far as the local building authority is concerned, the east wall is not a legally approved structure.

6. Although the representations that Respondent received from Complainant and the general contractor, leading it to believe that a permit had been issued, are mitigating factors, as the contractor building the wall, Respondent had an affirmative duty to assure that the permit had been properly issued for the type of wall to be constructed. Respondent’s failure to provide Complainants with a wall that would be approved by the local building authority constitutes a breach of an implied warranty of fitness for use and, as such not only a workmanship violation but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. In this regard, Respondent shall be required to do whatever is necessary to obtain approval of the wall from the local building authority. However, any permit related costs shall be the sole responsibility of Complainants.

7. The weight of the evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Specified pilasters and certain areas of the wall are out of plumb in excess of ¼ inch. b. There is a large vertical crack which runs through mortar joints and blocks on the south end of the wall. c. Rebar does not extend to the top of a specified pilaster.

8. Although specified mortar joints installed between specified pilasters and sections of the wall were shown not to be uniform in thickness, said issue is determined to be merely aesthetic in nature. Moreover, due to the fact that Complainants intended to stucco and paint the wall, the deviation in mortar thickness is found to be de minimis.

9. Respondent contends that there is expansive soil present on Complainants’ property and said soil could be the causative factor for the deficiencies determined in the wall. Complainants live in Gilbert, an area that is known in the industry to have expansive soil. Respondent knew or should have known of this expansive soil condition. By agreeing to construct a block perimeter fence on Complainants’ property, Respondent is properly charged with accepting the surface upon which said installation was to take place as being adequate to support a workmanlike result and, as such, Respondent is now estopped to claim that it has no liability for the problems in the wall due to expansive soil conditions.

10. Complainants knocked holes in specified areas of the wall for destructive testing in order to prepare for their presentation at the instant hearing. Respondent is not responsible for any repair to those areas of the wall which have been destroyed by Complainants. In the event this wall can be repaired and brought within the requirements of the local building authority, without being torn down and rebuilt, Complainants shall bear the total cost for repairs to the broken blocks.

11. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on some of the items, total compliance was not accomplished.

12. All other enumerated items of the complaint, presented at the instant hearing, were either not adequately shown to be workmanship deficiencies or matters upon which Complainants failed to sustain the requisite burden of proof.

13. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-31 licenses of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished either a or b, below:

a. Obtain the proper permit for the existing wall from the local building authority, accomplish appropriate and effective remedial work on all items set forth in Findings of Fact 7(a) through 7(c), above, and obtain final approval from the local building authority for the wall as built. In the event the existing wall cannot be approved by the local building authority, without complete destruction and rebuilding then Respondent shall be required to tear down the wall and rebuild, in a proper workmanlike manner, with the necessary permit. The parties are on notice that any costs involved in the issuance of the permit shall be the sole responsibility of Complainants. Any failure of Complainants to pay said costs shall relieve Respondent of any further responsibility for obtaining the required local building authority approval for the wall. b. Concludes other mutually satisfactory arrangements with Complainants.

It is further recommended that if Respondent complies with either of the above-described options on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondents’ Class C-31 licenses be placed on a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s 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. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, April 20, 2001

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

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