ALJDEC (decisions subject to certification as fin)

03F-T0240-ROC · Registrar of Contractors · 2003-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, January 16th, 2003, 9:00 a.m. APPEARANCES: Complainant was represented by the president and qualifying party, Mr. Doug Kasian. Respondent was represented by Mr. Scott Baker, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, 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. Respondent herein, Mr. Joseph Stanley Cunningham, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, as A S C Plastering, holding Class L-36 License number 097394. 2. Complainant, Sierra Madre Construction, Inc., contracted respondent on November 20th, 2001, for respondent to perform the stucco work on a commercial structure in Tucson, Arizona, for the price of $4,000.00. 3. Complainant’s first item of complaint is that the contract was not performed in a timely manner. Complainant focuses on the date of December 5th, 2001, and insists that the work was untimely since it was not completed by then. However, the parties’ written contract provides no date of expected completion of the stucco. In fact, complainant produced no substantial evidence in support of its contention that respondent was to have completed the work by December 5th, 2001, or by any other date. 4. Moreover, respondent produced evidence from its bookkeeper in the form of her testimony and a copy of the respondent’s check to the stucco worker dated December 4th, 2001, reflecting final payment for the work which, she testified, was completed that date. It appears then that the work was completed before December 5th, 2001, even if that date had any significance as a deadline, which it does not appear from the evidence to have. 5. Following completion of the stucco work complainant had three separate items of complaint to make against respondent: firstly, that respondent had applied merely a one-coat stucco system to the building where the contract had called for a three-coat system; secondly, that respondent’s workers were drinking alcoholic beverages while performing the contracted work; and thirdly, that the work was not completed before the deadline mentioned above. As found, the evidence resolves the last complaint item against complainant’s position. 6. As to the claim that the stucco system was only a one-coat system, complainant offered to the record the expert testimony of Mr. Joseph Cesare, an experienced construction worker who has performed “some” stucco work in the past. He examined the work after it was completed, and testified that the system was but a single-coat system. However, on cross-examination Mr. Cesare admitted that a one-coat system would not cover the control joints in the system, and that the stucco he examined did in fact cover the control joints. 7. Respondent produced his own expert witness, Mr. Martin Ukonu. Mr. Ukonu’s testimony, based on his professional education, experience and certification, carries greater weight than Mr. Cesare’s. Mr. Ukonu also examined the work after it had been completed and he testified that it was in fact a three-coat system. He testified that the depth of the system at the control joints is 7/8”, which is conclusive evidence that the system has three-coats. 8. The greater weight of evidence is that a three-coat system was applied. 9. Lastly, complainant’s only evidence as to the allegation of drinking on the job is hearsay that the owner of the building told him this had occurred. The owner was not present at the hearing to testify. Respondent’s testimony was that he knows his workers who performed this stucco job, and neither of them drink alcohol, and one worker’s religion forbids the drinking of alcohol. 10. There is insufficient evidence to find that the workers were drinking on this job. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. Respondent herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.7., and 11. 3. A.R.S. §32-1154.A.11. prohibits a licensed contractor from failing to pay more than $750.00 when due for services or materials rendered in connection with his operations as a contractor when he has the capacity to pay, or lacking the capacity, when he has been paid for the particular project or operation for which the services or materials were rendered or purchased. There is no evidence of respondent’s failure to pay any such money in this case. 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 respondent violated this section. 5. The parties are admonished that pursuant to A.R.S. §32-1158.A.4., all of their contracts for more than $750.00 are to include an estimated completion date for the work. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint T03-0240, together with the complaint on which it is based, be dismissed. . . . . . . Done this day, January 31st, 2003.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2003, to:

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

By ____________________________

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