ALJDEC

01F-T0122-ROC · Registrar of Contractors · 2001-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2001; at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, John Sando. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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 a Class K-14 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a wood fence on a portion of the Complainant’s residence. 3. Credible testimony and evidence established that the wood fence deteriorated rapidly and failed to fulfill its intended purpose. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated requests that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 5. The parties displayed a very adverse personal relationship during the hearing. Credible testimony from both sides established that this poor personal relationship existed for the entire construction project. The parties were unable to communicate effectively and were unable to schedule the onsite construction work to complete the directed corrective action. 6. Credible testimony and evidence, produced at hearing, established that the wood fence was very poorly constructed that it fails to meet applicable workmanship and industry standards and that the entire wood fence requires extensive repair or complete replacement. Although Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of her new wood fence are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 7. There was no credible evidence presented to establish that the proper repair or replacement of the wood fence requires engineering, or the preparation of any written plans for its repair or replacement and, consequently, it is not necessary for the Respondent to furnish such documents to the Complainant prior to the proper repair or replacement of the wood fence. 8. Credible evidence established that the proper repair or replacement of the wood fence is not so complicated that it would require extensive interaction between the parties. In view of the very poor relationship that was shown to exist between the parties, personal contact should be limited to the minimum necessary for access to the Complainant’s property. 9. Respondent shall give the Complainant at least 72 hours written notice of the date or dates that it plans to be at the Complainant’s residence to correct the wood fence. The Complainant shall cause her dogs to be properly secured so that the Respondent can perform construction work on the fence. The Complainant is admonished that any unreasonable denial of access may be treated as the substantial equivalence of compliance. 10. The Respondent is admonished that while the choice of whether to repair or replace the wood fence is up to it such choices are made at its peril. This will be the Respondent’s final opportunity to properly correct the Complainant’s wood fence. 11. The Complainant also brought up the condition of her concrete retaining wall at the hearing. There was no dispute that the Respondent did not construct the retaining wall. 12. Credible testimony, presented at the hearing, established that the wood fence is constructed behind the retaining wall. There was no credible evidence presented to establish that the Respondent performed any construction work on the retaining wall or that the Respondent damaged the retaining wall during the construction of the wood fence. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class K-14 License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has accomplished the proper repair or replacement of the Complainant’s wood fence. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the . . . . . . above provided License revocation shall not take place and Citation No. T01- 0122 shall be closed. Done this day, April 26 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of April, 2001, 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