ALJDEC decisions subject to certification as final

06F-M2267-ROC-com · Registrar of Contractors · 2008-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2008. APPEARANCES: Lavender and Old Lace is represented by its attorney, Gary Michael Smith, Esq. C C Russell Asphalt and Concrete, Inc. was represented by its officer and qualifying party, Charles Russell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ This matter came on for a compliance hearing before the Office of Administrative Hearings to determine whether or not Respondent timely complied with the prior Recommended Order adopted by the Registrar of Contractors requiring Respondent to complete “the contracted work at its sole cost and expense and in a proper and workmanlike manner.” Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order regarding Respondent’s compliance with the prior Order:

FINDINGS OF FACT

1. On October 25, 2006 and January 17, 2007, an evidentiary hearing was conducted before the Office of Administrative Hearings, an independent agency, on a Citation and Complaint issued by the Registrar of Contractors (“Registrar”) alleging violations of A.R.S. §32-1154(A) (1) and (7). 2. On January 22, 2007, Administrative Law Judge Marianne T. Bayardi issued an Administrative Law Judge Decision in which she concluded that Respondent had violated the provisions of A.R.S § 32-1154(A) (1) and (7).[1] 3. In her Administrative Law Judge Decision, Judge Bayardi issued the following Recommended Order:

On the effective date of the Order entered in this matter, Respondent’s Class A-14 License (No. 155205) will be suspended until the [Registrar of Contractors] receives written proof that Respondent has completed the contracted work at its sole cost and expense and in a proper and workmanlike manner. If, on or before the effective date of the Order, the [Registrar of Contractors] has received written proof that Respondent has completed the required work, then no suspension will take place and this Complaint will be closed.

4. The Registrar adopted Judge Bayardi’s Administrative Law Judge Decision. 5. Respondent subsequently advised the Registrar that it had complied with the prior Order issued by the Registrar. Complainant filed an objection claiming that Respondent had not complied with the Order. 6. There is credible evidence that Complainant’s commercial property had grass and weeds growing in the area of the parking lot that Respondent had contracted to pave with asphalt. 7. Respondent refused to treat and kill the grass and weeds growing in the parking lot area prior to paving it. 8. Within approximately five days after Respondent paved the parking lot, Complainant started having grass and weeds growing through the asphalt parking lot. 9. At the compliance hearing, Respondent presented Brian Blake from Whitfield Nursery as its expert witness. 10. Mr. Blake had not reviewed the approved grading plans for the parking lot and surrounding areas. 11. Mr. Blake had not visited the jobsite. His testimony was based upon photographic evidence. 12. Mr. Blake is not licensed to construct parking lots. 13. Mr. Blake testified that the grass in the existing parking lot needs to be treated. 14. The Registrar’s assigned inspector, Ted Gerold, performed a pre- hearing inspection for the compliance hearing. Inspector Gerold did not inspect the surrounding landscaping; he viewed the parking lot installed by Respondent. 15. Inspector Gerold credibly testified that at his pre-hearing inspection he viewed grass growing throughout the asphalt parking lot paved by Respondent. 16. During that inspection, Inspector Gerold observed throughout the parking lot, including non-water retention areas. 17. There is no Registrar standard for ponding water on an asphalt parking lot. 18. Respondent did not pre-treat Complainant’s soil prior to paving the asphalt parking lot. It did not apply any pre-emergent to the soil prior to paving. 19. When Complainant entered into the contract with Respondent, Complainant had a reasonable expectation that it would receive an asphalt parking lot without landscaping growing through the asphalt.

CONCLUSION OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. The Administrative Law Judge concludes that Respondent has not substantially complied with the Registrar’s prior Order to complete its scope of work on Complainant’s parking lot. Respondent did not pre-treat Complainant’s soil, despite the presence of grass and weeds. After paving the asphalt parking lot, grass and weeds protruded through the asphalt within five days.

RECOMMENDED ORDER ON COMPLIANCE HEARING

Respondent’s License No. 155205 shall be suspended, as provided by the Administrative Law Judge Decision adopted by the Registrar, on the effective date of the Order entered in the Compliance Hearing in this matter until the Registrar receives written proof, and approves such proof, that Respondent has successfully completed remedial work to abate the growth of grass and weeds in Complainant’s parking lot. 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, January 28, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Administrative Law Judge Bayardi has since left the Office of Administrative Hearings and serves as a Municipal Court Judge for the City of Phoenix, Arizona.

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