ALJDEC

02F-L0025-ROC · Registrar of Contractors · 2002-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 2002. APPEARANCES: Sara Geneva Gallagher, Complainant; Kym Schneider, Respondent; Cliff Corlett, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ After filing a complaint regarding the installation of her fence, Sara Gallagher was unable to establish a violation of the applicable statutes sufficient to warrant any imposition of disciplinary action against the Respondent’s license. Therefore, it is recommended that the Registrar of Contractors close the complaint in this matter without taking any further action against the license. FINDINGS OF FACT 1. On March 21, 2001, Sara Gallagher contracted with Kym Schneider for the installation of a chain-link fence. The contract, signed by both parties, specifically provides, “Buyer agrees to clear and establish grade and fence lines prior to installation.” 2. On August 16, 2001, Sara Gallagher filed a complaint with the Registrar of Contractors stating, “Fence is not level-it’s weak-it’s not on my property—workers broke watering pipes-hole in building (small)-gates shake and lean.” 3. Registrar of Contractors Inspector Cliff Corlett conducted a job site inspection on August 27, 2001 and issued a Corrective Work Order on August 28, 2001. The Corrective Work Order directed Ms. Schneider to install a missing post wire, repair a gate latch and repair a stucco hole made during installation of the fence. All other items in the complaint were found to be within minimum workmanship standards. 4. On October 1 or 2, 2001, Ms. Gallagher submitted a request for hearing. In it she stated that the corrective work was done but she was not satisfied because the fence was still uneven and the fence was set beyond the property line. At a pre-hearing inspection conducted on April 11, 2002, Inspector Corlett found that privacy slats and a swimming pool had been added by Ms. Gallagher and some of the posts were now bent. Since the contractor would not have known about the pool and any need to meet legal requirements for a pool fence, and since the slats were added by the homeowner and caused added stress to the posts, he concluded that the bent posts were not the contractor’s responsibility. 5. Mr. Corlett also concluded that the levelness or straightness of the top rail of the fence followed the grade, an issue that was the responsibility of the homeowner or a grading contractor but not the responsibility of a fencing contractor. He also found that the contractor was not responsible for surveying the property and, as stated in the contract, the property line is the responsibility of the homeowner. He confirmed that the Corrective Work Order had been completed to meet minimum workmanship standards. 6. Ms. Gallagher argued at hearing that the dip in the fence was unsightly and that she had planned to fill in the open spaces beneath the fence after it was done. She argued that the fence was too weak and needed more posts. Ms. Schneider argued that the contract is clear in informing customers that they are responsible for the property lines and the grading. She had offered grading at an additional charge but Ms. Gallagher had declined. Leaving a gap beneath the fence would not have met minimum workmanship standards but her workers had done some digging to try and help. She also stated the she had asked Ms. Gallagher if she was intending to put in a pool and, having received a negative response, informed Ms. Gallagher of pool requirements and offered 8-foot centers anyway. Ms. Gallagher declined. The parties contracted for residential grade posts and fence based on the desires of the customer. 7. The records of the Registrar of Contractors reflect that there are two open, one closed by compliance and one dismissed complaint against the Respondent’s license in the last two years. The records reflect no previous suspensions or other disciplinary action. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires Arizona contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. While the Registrar of Contractors Inspector found some minor items of correction, they were not so substantial as to merit disciplinary action. The main items of concern to the homeowner were all established to be the homeowner’s responsibility and involved no violation by the contractor. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. In this case, the homeowner has not established a wrongful or fraudulent act resulting in her substantial injury. Therefore, the evidence did not support the finding of a violation of this portion of the above statute. 5. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. Here, the Corrective Work Order was completed in a timely manner. No violation was established on this issue. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). This standard “allows both parties to ‘share the risk of error in roughly equal fashion’… Any other standard expresses a preference for one side’s interests.“ Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 74 L.Ed.2d 548, 103 S. Ct. 683 (1983) quoting Addington v. Texas, 441 U.S. 418, 423, 60 L.Ed.2d 323, S. Ct. 1804 (1979). 7. In this case, the Complainant, Ms. Gallagher, has failed to establish any basis for finding that the contractor violated the provisions of A.R.S. § 32-1154(A)(7) and (23). Although some minor items required correction under A.R.S. § 32-1154(A)(3) and A.A.C. R4-9-108, they were not sufficient to merit the imposition of any disciplinary action. Based upon these considerations, this complaint should be closed. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that the complaint in Case No. 02F-L0025-ROC be closed without the imposition of any disciplinary action against the Respondent’s license. Done this day, April 30, 2002. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

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