ALJDEC

02F-S0022-ROC · Registrar of Contractors · 2002-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, February 27th, 2002; 8:30 a.m. APPEARANCES: The complainant, Ms. Jacque Schultz, represented herself. The respondent, Mr. Steven Leonard Garcia, doing business as Benson Fence Company, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings in Sierra Vista, Arizona. 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 in this case, Steven Leonard Garcia, doing business as Benson Fence Company, is, and during all times material hereto, was, a contractor licensed by and doing business in the State of Arizona, holding Class C-14 License number 116392. 2. The complainant, Jacque Schultz, contracted with the respondent on or about June 22nd, 2001, for the respondent to construct 600 feet of field fence around her Benson, Arizona residence. The fence was completed in July of 2001. 3. Complainant was dissatisfied with the respondent’s work, and filed the instant complaint with the Registrar of Contractors on August 16th, 2001. 4. Respondent complains about several aspects of the respondent’s construction. 5. First, complainant complains that the respondent did not set the corner posts in cement, but merely drove them into the desert. Complainant considers this irregular based on her previous experience of seeing fence posts set in cement when she was in California. Complainant testified that she had spoken with a person in the registrar’s office, who she could not identify, and this person told her that the fence posts indeed should have been set in cement. 6. Respondent testified that it is industry standard not to set the fence posts in cement, but to install them directly into the caliche soil as he did. He testified credibly that he informed complainant before setting the posts that he would not set them in cement or concrete, and that they are set into the desert unaccompanied, much after the fashion of telephone poles. Registrar of Contractors Inspector Mike Nieves, who was assigned to investigate this complaint from the beginning, testified. He testified that not only is it incorrect to state that the registrar’s position is to set the posts in cement, but that such method would be undesirable, and respondent’s method preferred. Nowhere in the contract is it agreed that the fence posts would be set in cement. 7. Secondly, complainant complains that the “T-bars” or “T-posts” did not match in color, and some had rust on them. However, as respondent testified, these metal T-bars are a rough finished product, made of the same material as construction rebar. Commonly there is some rust on some of the posts under the paint. Also, as credibly testified by the respondent, when they are driven into the caliche with a 70-pound post pounder, some of the paint will be chipped off, and expose some rust underneath. It is common within the industry that not all of the T- posts will match, and they, which are to become part of a field fence, do not have the same finish to them as an item to be installed in a lady’s bathroom vanity. 8. Thirdly, complainant complains that there is at least one spot where the barbed wire is loose. Respondent testified that if there is any loose barbed wire he would be willing to go to the site and tighten it up. 9. Fourthly, complainant complains about the location of the fence. She complains that respondent set the fence 6” inside her property line, instead of only 1” inside the line. She anguishes that this means she has relinquished 100 square feet of her land to her neighbors. However, as respondent points out, the parties’ contract clearly states that the complainant is responsible for staking the fence line. Complainant did stake the line, and there is insufficient evidence to conclude that respondent deviated from the area staked by the complainant. 10. Finally, complainant complains that the respondent failed and refused to warrantee his work. This is not true. The contract itself contains a warranty of the work. What respondent failed to guarantee were the railroad ties used as corner posts. Respondent failed to guarantee these ties because complainant was the one who had furnished them for respondent to install. They were her ties; he simply installed them. 11. Inspector Nieves conducted a job-site inspection of the fence, and issued an RC-C-007 letter to complainant on August 30th, 2001. He declined to issue any Corrective Work Order to the respondent because, as he stated in the letter, “Homeowner failed to show that the contractor was in violation.” This remained the inspector’s opinion at the hearing. 12. All work by the respondent in this case, and all materials used by the respondent, were of good workmanship and industry quality. There is no evidence of any wrongdoing by this contractor on this job. 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 herein is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.3. and 7. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the citation and complaint is A.A.C. R4-9-108, Workmanship Standards. All evidence supports the conclusion that respondent’s workmanship was good. Respondent did not violate A.R.S. §32-1154.A.3. 4. 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 any of respondent’s actions relative to this complainant were wrongful or fraudulent. There is no evidence that the complainant was injured at all. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint number S02-0022, together with the complaint on which it is based, be dismissed. Done this day, March 13th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488