ALJDEC decisions subject to certification as final

06F-Y0256-ROC-RES · Registrar of Contractors · 2007-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2nd, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. Enrique S. Urbieta, represented himself. Respondent, SDP Construction, LLC, was represented by Ms. Angelica M. Ortiz, Member, and Mr. Martin Bejarano, Member and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam from the Registrar of Contractors, Yuma, Arizona office. Testimony was heard 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, Sahara Development Properties, LLC, doing business as SDP Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 210689. 2. Complainant, Mr. Enrique S. Urbieta, purchased his residence in Yuma, Arizona, on or about September 25th, 2004. The home was constructed by Respondent, and Complainant took possession in June of 2005. 3. After he moved into his new home, Complainant noticed some construction defects and filed the instant Complaint with the Arizona Registrar of Contractors on June 16th, 2006. 4. The Complaint was assigned to Registrar of Contractors Inspector Geoff Galgan. Inspector Galgan conducted a job site inspection and, as indicated by the agency records, issued a written Corrective Work Order to Respondent dated August 1st, 2006. The CWO directed Respondent to make a number of corrections to Complainant’s home and to do so within 15 calendar days, which was a reasonable amount of time. Other statements in the CWO directed the Respondent to address certain items only if doing so were a requirement of the contract between the parties. Still other statements in the CWO noted the Inspector’s conclusion that the Respondent was not responsible for making any corrections. 5. Respondent did return to the job site and did take corrective measures. The parties were in dispute as to other items; specifically, as to whether their contract called for Respondent’s performance. 6. Complainant requested an administrative hearing which was duly scheduled, noticed and held. Complainant appeared and testified, as did Ms. Angelica M. Ortiz, and Mr. Martin Bejarano, Members of the Respondent, LLC, and Mr. Gustavo Rodriguez, Respondent’s job supervisor. Inspector Galgan did not appear. 7. Six items of the Complaint remain in contention. 8. The first item is loose and cracked roof tiles. The CWO did find these tiles and did order the Respondent to correct them. Respondent did obey the CWO by returning and correcting the loose and/or cracked tiles. In fact, Respondent returned on four or five occasions to correct tiles, after Complainant reported finding additional ones after Respondent had departed. Complainant accuses Respondent of not correcting all the tiles, and Respondent accuses Complainant of being on the roof himself and carelessly walking on the tiles which cracked some of them. Complainant accuses Respondent’s workers of stepping on and cracking tiles. Respondent’s testimonial evidence included hearsay statements that Inspector Galgan returned after the corrections and agreed that the tiles had been properly corrected, and an assertion that Complainant signed off on the tiles being properly corrected. Complainant asserts that he signed to indicate only that Respondent had performed work. The record does not have the benefit of any written statement by Complainant or testimony of the Inspector, However, there is no doubt that initially some tiles were broken or loose, and based on that evidence Respondent should return one last time, and make corrections to any and all loose or cracked tiles. 9. Complainant also testified that when Respondent returned to correct the gap between the front door and door frame which was admitting light, the Respondent cracked the door jamb in the process. This was credible testimony, and was not contradicted by Respondent. Respondent should return and make sure the gap is properly eliminated, and any damage to the front door jamb properly corrected. 10. Complainant’s next item of complaint is that Respondent failed to install gas piping in the home. Complainant contends that Respondent verbally agreed to do this. The CWO ordered Respondent to do this only if it was part of the contract verbally or in writing. Nowhere does this appear in the written contract, and although Complainant states that Respondent agreed to do it, Respondent denies ever having so agreed, and points to the fact that of all the several homes it has built in this subdivision, none were built with gas piping. There is insufficient evidence to find that Respondent contracted to include gas piping in Complainant’s house. 11. Complainant complains that Respondent failed to give him a set of the plans for the house. The CWO ordered Respondent to give Complainant a set of the plans if Respondent agreed to do so. Complainant swears that Respondent agreed; Respondent’s members swear that they did not. There is no such agreement in the written contract. There is insufficient evidence to find that Respondent is obligated to give Complainant a set of the plans for his house. 12. Complainant complains that Respondent built the house smaller than the square footage called for by the contract. There is no square footage guaranteed in the contract. Respondent’s credible testimony was that preliminarily the Respondent expected to build a house having 1,732 square feet of living space. However, due to the irregularity in the configuration of the lot, and setback requirements, when construction began the size had to be made slightly smaller by approximately 44 square feet. Even the written “Description of Material Mirage Plan,” signed by both parties and attached to Complainant’s Complaint filed in the Registrar of Contractors office, states that the house is to be 1,687 square feet. There is insufficient evidence to find that the Respondent violated any agreement as to square footage. 13. Complainant’s final complaint is related to the earlier one about gas piping, but this is specifically to do with gas piping to the fireplace. The CWO again states that Respondent must provide what it agreed to provide. The agreement between the parties called for a fireplace, but contained nothing specific beyond that. There is insufficient evidence that the Respondent agreed, verbally or in writing, to install a gas fireplace. 14. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

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. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, 23, and 3 (namely A.A.C. R4-9-108, Workmanship Standards). 3. There is insufficient evidence to conclude that Respondent disregarded or departed from plans or specifications or building codes in any manner violating A.R.S. 32-1154.A.2. 4. There is a greater weight of evidence that Respondent violated A.R.S 32-1154.A.3, and 23 by the cracked and loose tiling and gap at the front door and damaging corrective measures. Respondent’s workmanship in these two items was below minimum standards, and the corrective effort did not fully comply with the Inspector’s Corrective Work Order. 5. There is no evidence that Respondent violated A.R.S. 32-1154.A.7 in any fraudulent manner, or in any wrongful manner independently of the violations already concluded to have occurred.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 210689 be suspended until such time as the Registrar of Contractors receives written proof that Respondent has properly corrected any and all remaining cracked and loose roof tiles, and the gap and any damage Respondent may have caused at the front door of Complainant’s home. It is further recommended that in the event the Respondent properly accomplishes the above-described corrective action, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint No. Y06-0256 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, July 10th, 2007.

______________________________________ Grant Winston Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia Legal Department 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