ALJDEC

01F-T0125-ROC · Registrar of Contractors · 2001-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9th, 2001; 9:00 a.m. APPEARANCES: The complainant, Ms. Debra Sylvester, appeared in her own behalf. The respondent Copper Valley Fence Company, was represented by Mr. Aldo Schritter, General Manager. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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, Copper Valley Fence Company, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-14 (Fencing) License number 139011. 2. Complainant is a resident of Colorado. She contracted with the respondent on February 12th, 2000, for the respondent to construct a redwood fence and two gates around her Tucson rental property. The contract price term was $2,850.00, which complainant has fully paid. The work was completed by the respondent on or about February 28th, 2000. 3. Complainant was dissatisfied with the fence and gates and filed the instant complaint with the Registrar of Contractors on August 10th, 2000. In her complainant the complainant states that the gate latches were installed only on the inside of the fence, and too low to be reached from the outside, and that the rear gate is pulling away from the post at the top and drags on the ground. 4. The complaint was assigned to Registrar of Contractors’ Inspector Richard C. Allen for investigation in the normal course of the registrar’s function. Inspector Allen conducted a job-site inspection on October 17th, 2000. Pursuant to the inspection, Inspector Allen issued a Corrective Work Order to the respondent dated October 23rd 2000. 5. The CWO directed the respondent to make certain corrections to the fence and gates, as follows: “1. Correct/properly attach the entire rear yard wooden fence rails to the posts with the proper fasteners. 2. Correct the alley [rear] gate so it can be opened from both sides of the gate.” The inspector allowed the respondent 15 calendar days from the date of the CWO to make these corrections, which was a reasonable amount of time to do so. 6. Respondent failed to completely heed the CWO within the time fame allowed. Complainant requested an administrative hearing by letter to the registrar’s office dated November 28th, 2000. In that letter she contended that not only is the rear gate in need of correction, but that the front gate also needs to be corrected in the same manner so that it too can be opened from either side. 7. Citation and Complaint issued from the registrar’s office on January 16th, 2001, citing the respondent with possible violations of A.R.S §32- 1154.A.7., 23., and 3. Respondent filed its written response to the Citation and Complaint on February 1st, 2001. This hearing was noticed for and held on May 9th, 2001. 8. It appears from the evidence that the respondent’s workmanship was poor. The evidence begins with the testimony of Inspector Allen, who conducted a prehearing inspection the day before the hearing. His inspection revealed to him that there were three aspects of the fence and gates still in need of correction. First, he testified that there is one mid-rail at the rear section of the fence (a section attached to the gate post) that was unacceptably loose and in need of correction; and second, that both latches of the gates were inoperable and needed to be corrected so that they properly opened from the inside and outside, and third, that there were many “shiners” in the fence which ought to be removed and replaced with nails driven true. Shiners are nails driven inaccurately so that they protrude outside of the wood when they should have gone inside the wood. 9. Further evidence also proves that there is one board of the fence damaged to the extent it needs to be replaced by a proper board. (See: Comp.’s Ex. 2.) 10. Respondent’s testimony at the hearing conceded that the conditions testified to by Inspector Allen existed, and also conceded that the broken board needed to be replaced. Respondent’s evidence was that it was agreeable to returning to the job-site and correcting the three items testified to by the inspector (including making the latches operable from both sides) and replacing the broken board. 11. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.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 contractors’ laws of this state, without valid justification, within a reasonable period of time, after receiving a written directive from the registrar to do so. The written directive in this case is the CWO. The CWO gave the respondent a reasonable amount of time to make the corrections. Respondent failed to make those corrections, and offered no valid justification for the failure. Respondent violated A.R.S. §32- 1154.A.23. 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The pertinent rule in this case is A.A.C. R4-9-108, Workmanship Standards. That rule requires all work to be performed in a professional and workmanlike manner. Respondent’s work, as the record was shown, was not performed in a professional and workmanlike manner. Respondent violated A.R.S. §32-1154.A.3. 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 evidence that the respondent violated this section independently of the violations already concluded. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class K-14 License number 139011 be suspended until such time as the registrar’s office receives proof that the respondent has completed the corrective measures of (a.) correcting the mid-rail at the rear section of fence, (b.) correcting both latches so that the gates properly open and close and are operable from either side, (c.) removing all shiners and replacing them properly with proper fasteners, and (d.) removing and replacing the defective board as seen in Complainant’s Exhibit 2. It is further recommended that in the event the respondent accomplishes the above-described corrective action, on or before the effective date of this order, then the above-provided license suspension shall not take place and Citation and Complaint T01-0125 shall be closed. Done this day, May 22nd, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of May, 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