ALJDEC decisions subject to certification as final

06F-G1426X-ROC · Registrar of Contractors · 2007-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2007. APPEARANCES: Cobblestone Auto Spa & Market was represented by its attorney, Andrew S. Ashworth, Esq. Fred Combs Construction, Inc. was represented by its executive vice president, Matthew Holly. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Fred Combs Construction, Inc. (“Respondent”) is the holder of the following contracting licenses issued by the Registrar of Contractors: License No. 076804, a Class B-01 license; License No. 087402, a Class L-05 license; and, License No.197093, a Class K-11 license. 2. On or about January 31, 2003, Cobblestone Auto Spa and Market (“Complainant”) entered into a written agreement with Respondent for the construction of a commercial carwash facility in Surprise, Arizona. The contract price was $2,446,280.68. Ultimately the contract price exceeded $3 million. 3. Respondent completed the project on November 17, 2004. 4. After completion of the project, Complainant’s staff made numerous requests to Respondent to perform extensive remedial repairs. 5. As a result of Respondent’s failure to perform the requested remedial repairs to minimum workmanship standards, Complainant filed a complaint with the Registrar of Contractors on or about April 17, 2006 alleging statutory and regulatory violations by Respondent. 6. In response to the filed complaint, the Registrar of Contractors’ assigned inspector, Jim Hennessey, performed a jobsite inspection to view Respondent’s alleged deficient workmanship. That inspection resulted in the issuance of a Corrective Work Order dated May 18, 2006, which required Respondent to take timely, appropriate corrective action to the following items:

1. Repair masonry stone veneer that is falling off. The contractor is to correct by the appropriate means.

2. Fix damage to the front face of the Yesco sign. The complainant states he is dismissing this item. – No action required of the contractor.

3. Concrete slabs near island pumps 19-20, 1, 2. Slabs near south retention tank need repair. The contractor is to correct by the appropriate means.

4. Painting. A) Provide a complete list of interior/exterior color specifications. Although not required of the contractor, the contractor as a courtesy will provide the complainant with a list. B) Repaint overflow drain spouts on front of lube to match wall color. No action required of the contractor. Unable to verify. C) Wall connection at northeast corner of patio, repair sloppy. The contractor, per a jobsite agreement, will correct by appropriate means. D) Access panel on canopy columns need a second coat of paint. The contractor, per a jobsite agreement, will correct by appropriate means. E) Not all drain spouts protruding from the columns are painted. The contractor, as a courtesy, will correct. F) Lube door sills need second coat of paint. Contractor is to correct by the appropriate means. G) Menu board legs to match stucco. No action required of the contractor – Unable to verify complaint allegation. H) Pipe penetration at south end of main building wrong color, should match wall. No action is required of the contractor. I) Fire lanes between both car washes to match building color. No action required of the contractor. J) Misting system piping, paint green to match eye brow. The complainant stated he was dismissing this item. No action required of the contractor. K) Main SES electrical panel door is not painted to match adjacent building wall color. No action required of the contractor. L) Patch/paint holes in wall outside of the storage door. The holes do not appear to be the contractor’s responsibility. No action required of the contractor. M) Access panel near back side of cashiers [sic] soffit needs to be painted orange. No action required of the contractor. N) Touch up paint at vacuum room door slats. No action required of the contractor.

Concrete A) Water stands along north side of the lube building. Contractor to correct by appropriate means. A1) Contractor should connect roof drain to building waste system. This cannot be done, per code. Therefore, no action is required of the contractor. B) Water stands at the west end of pump island 19 & 20. The contractor is to correct by the appropriate means.

*Note* The complainant added two items to the complaint list and the contractor agreed to address them:

C) Water ponds at the north gas pump island 3 & 4. The contractor is to correct by the appropriate means. D) Repair two sections of concrete by the north side of gas pump island and east of carwash. The contractor is to correct by the appropriate means.

7. On August 21, 2006, the Registrar of Contractors issued a Citation and Complaint in Cases Nos.G06-1426, G06-1426W and G06-1426X alleging possible violations by Respondent of A.R.S. § 32-1154(A)(2), (7), (11), (23) and (3), namely A.A.C. R4-9-108. 8. On or about September 5, 2006, Matthew Holly, Respondent’s executive vice president, filed an Answer to the Citation and Complaint on behalf of Respondent. In the Answer, Mr. Holly stated that all the items of the Corrective Work Order had been completed. At the hearing, Mr. Holly testified candidly that he had relied upon Respondent’s employees for information on compliance with the Corrective Work Order. He testified that after he visited Complainant’s facility, he acknowledged that Respondent does not have a valid excuse for its noncompliance with the written directive. 9. Respondent’s deviation from specifications, its deficient workmanship and its failure to comply with the Corrective Work Order are wrongful acts that substantially injured Complainant. Complainant has been operating its carwash facility with Respondent’s deficient workmanship. 10. There is no evidence that Respondent failed to pay any amount of money to anyone involved in this project.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in these cases. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent’s License No. 087402 is a Class L-05 commercial service station equipment contracting license. There is no evidence that any of Respondent’s deficient workmanship pertains to the scope of this license. Therefore, the Administrative Law Judge concludes that the Citation and Complaint in Case No. G06-1426W should be dismissed. 4. Respondent’s License No. 197093 is a Class K-11 dual electrical contracting license. There is no evidence that any of Respondent’s deficient workmanship pertains to the scope of this license. Therefore, the Administrative Law Judge concludes that the Citation and Complaint in Case No. G06-1426X should be dismissed. 5. Respondent, while contracting under the scope of general commercial contractor License No. 076804, violated the provisions of A.R.S. § 32- 1154(A)(2), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. Respondent, while contracting under the scope of general commercial contractor License No. 076804, violated the provisions of A.R.S. § 32- 1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 7. Respondent, while contracting under the scope of general commercial contractor License No. 076804, violated the provisions of A.R.S. § 32- 1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 8. Respondent, while contracting under the scope of general commercial contractor License No. 076804, violated the provisions of A.R.S. § 32- 1154(A)(3), specifically A.A.C. R4-9-108 as cited in the Citation and Complaint issued by the Registrar of Contractors. 9. Respondent did not violate the provisions of A.R.S. § 332-1154(A)(11), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Case No. G06-1426 Respondent’s License No. 076804 shall be suspended on the effective date of the Order entered in this matter until the Registrar of Contractors receives written proof that Respondent has fully complied with the Corrective Work Order dated May 18, 2006. If Respondent properly complies with the Corrective Work Order on or before the effective dated of the Order entered in this matter, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 076804 shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the Corrective Work Order is filed with the Registrar of Contractors, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s License No. 076804, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered.

Case No. G06-1426W The Citation and Complaint issued in Case No. G06-1426W against Respondent’s License No. 087402 is dismissed.

Case No. G06-1426x The Citation and Complaint issued in Case No. G06-1426X against Respondent’s License No. 197093 is dismissed.

Certification In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, April 2, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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