ALJDEC

02F-M0195-ROC · Registrar of Contractors · 2002-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2002. APPEARANCES: The Complainant appeared personally. The Respondent was represented by its attorney, Mark Kirkorsky, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 License No. 146876, a Class KB-01 dual building contractor license, issued by the Registrar of Contractors. 2. Respondent did concrete and kool-deck work at the Complainant’s residence. 3. Respondent originally dealt with Complainant’s pool builder, Desert State Shotcrete. Respondent agreed to perform the application of kool- deck and concrete at contractor’s pricing as a favor to the pool builder. 4. Respondent poured a concrete slab between two existing slabs and applied kool-deck product over the newly poured concrete and a patio. 5. Respondent created a Quotation/Invoice dated May 23, 2001, covering the following scope of work performed by Respondent:

a) Apply acrylic lace: 372 square feet. b) Supply and install cup anchors: two c) Supply and install skimmer: one d) Supply and install cantilever: 73 e) Form and grade area f) Install rebar around perimeter of deck g) Finish concrete with medium broom brush h) Apply top surface finish only: 411 square feet

Complainant testified that he did not receive the Quotation/Invoice until the last week of June. 6. The Quotation/Invoice contains a contract price in the amount of $3,530.85 based upon contractor’s pricing. Complainant has refused to pay that amount and has offered to pay $1,500.00 for Respondent’s work. 7. On June 26, 2001, Complainant filed a complaint with the Registrar of Contractors alleging that Respondent violated provisions of the State’s contracting laws on the subject project. 8. In response to the filed complaint, the Registrar’s assigned agency inspector performed a jobsite inspection to view Respondent’s workmanship. As a result of that inspection, the inspector issued a Corrective Work Order dated August 13, 2001, directing the Respondent to perform remedial repairs to the following items:

a) address the inconsistent finish parallel to the deco-drain; b) address the white deposit or discoloration below the ceiling fan on the patio; and c) coat the bottom nose of the cantilever edge.

9. Respondent is found to have properly corrected the inconsistent finish parallel to the deco-drain. The Registrar’s inspector gave credible evidence that the appearance of the joint is within minimum workmanship standards. 10. Complainant agrees that the white deposit or discoloration below the ceiling fan on the patio has been corrected. 11. Complainant did not present any evidence to establish whether or not the bottom nose of the cantilever edge has been coated. The inspector believes that the required remedial work has been performed. Andy Alvarado, Respondent’s employee, testified that it is not standard industry standards to coat cantilevers. He went on to testify that when the pool tile was applied the applicator over-coated with thin-set. He stated that Respondent did re-coat the cantilever as required by the written directive. 12. Respondent is determined not to be responsible for the hump in the concrete complained about by Complainant. Complainant poured the concrete area where the hump is located. There is insufficient evidence that Respondent’s application of the surface coating product, even with a sponge as alleged by the Complainant, cause the existing hump. The Registrar’s inspector did not require Respondent to perform remedial repairs to the hump in his written directive to the Respondent. 13. Respondent is found to have complied with the Registrar’s written directive by performing the required remedial repairs to minimum workmanship standards, albeit somewhat belatedly due to his failure to notify the Registrar of Contractors of a change in address which delayed its receipt of the Corrective Work Order. 14. The parties have a dispute as to the compensation that Respondent is entitled to receive for the work it performed on this project. Unless the parties can mutually settle their monetary dispute, then the proper forum for the resolution of that dispute is a civil court of competent jurisdiction rather than the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over the subject matter of this case and the Respondent. 2. The evidence of record is adequate to establish that the Respondent has not violated the provisions of A.R.S. § 32-1154(A)(7)(23) and (3); namely A.A.C. R4-9-108. 3. The evidence of record supports the closing of the Citation and Complaint in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be closed. Done this day, April 29, 2002

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________ -----------------------

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