ALJDEC decisions subject to certification as final

07F-G1232-ROC · Registrar of Contractors · 2007-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2007 APPEARANCES: Michael Zaitz appeared personally. Fusipala Tuihalamaka Fifita did not appear. 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. Fusipala Tuihalamaka Fifita, doing business as Aloha Landscaping (“Respondent”), is the holder of License No. 187910, a Class C-21 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about May 2006, Respondent entered into a contract with Michael Zaitz (“Complainant”) for landscaping work to be performed at the latter’s residence. 3. After Respondent performed his scope of work, Complainant filed a written Complaint with the Registrar alleging numerous deficiencies in Respondent’s workmanship. The Registrar designated the Complaint as Case No. G07-1232. 4. On or about March 1, 2007, the Registrar’s assigned inspector, Eric Ulinger, performed a jobsite inspection to view Respondent’s workmanship. As a result of that inspection, Inspector Ulinger issued a Corrective Work Order dated March 1, 2007, which required Respondent to timely perform remedial repairs to the following Complaint items:

1) Sprinklers do not provide full coverage at west side of back yard. Contractor is to correct by the appropriate means.

2) East side yard floods due to excessive number of spray heads. Contractor is to correct by the appropriate means.

3) Patio extension has improper slope. Contractor is to correct by the appropriate means.

4) Flagstone coating not done at patio extension per verbal agreement. Contractor is to resolve this issue with the homeowner.

5) Concrete at east side yard had uneven surface. Contractor is to correct by the appropriate means.

6) Side yard concrete slab interferes with gate operation. Contractor is to correct by the appropriate means.

7) Slab at east yard does not allow for drainage. Contractor is to correct by the appropriate means.

8) Concrete does not have proper expansion joint material at sidewalk, east yard and patio extension. Contractor is to correct by the appropriate means.

9) Concrete splatter on fence and gate. Contractor is to correct by the appropriate means.

10) Stucco does not match existing. Contractor is to correct by the appropriate means.

11) Wall around A/C unit is too close. Contractor is to correct by the appropriate means.

12) Wall around A/C unit is not finished. Contractor is to correct by the appropriate means.

13) Planters are not sealed. Contractor is to correct by the appropriate means.

*Note* The following items were added at the jobsite inspection. Contractor not present.

14) Wall at west side yard is low. Contractor is to correct by the appropriate means.

15) Front and west sidewalks are not properly formed or finished. Contractor is to correct by the appropriate means.

16) Concrete splatter on driveway. Contractor is to correct by the appropriate means.

17) Front yard boulder is not embedded. Contractor is to correct by the appropriate means.

18) Landscape rock does not have proper coverage. Contractor is to correct by the appropriate means.

5. The Registrar referred Case No. G07-1232 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. The Registrar issued a Notice of Hearing in Case No. G07-1232, which notified the parties of the time, date and location of the hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. On November 19, 2007, Inspector Ulinger performed a prehearing jobsite inspection at Complainant’s residence. 9. Respondent is found not to have timely corrected Item No. 1 of the written directive. At his prehearing jobsite inspection, Inspector Ulinger observed that Respondent’s repairs had not been completed. 10. Item No. 2 of the Corrective Work Order has been repaired. 11. Item No. 3 of the Corrective Work Order has not been properly repaired by Respondent. 12. Item No. 4 of the written directive has been repaired by Complainant. 13. Items No. 5 and 6 of the Corrective Work Order have been repaired. 14. As to Item No. 7 of the written directive, there is still ponding on the slab. 15. In regards to Item No. 8 of the written directive, the concrete has been re-poured but the repairs to the patio extension are not proper. 16. Item No. 9 of the written directive has not been repaired. 17. Item No. 10 of the written directive has been corrected. 18. Items No. 11 and 12 of the written directive have been repaired but there is still a missing gate. 19. Item No. 13 of the written directive has been corrected. 20. Item No. 14 of the written directive has been corrected. 21. Item No. 15 of the written directive has not been corrected. There are still ponding issues. 22. Items No. 16, 17 and 18 of the written directive have not been corrected. 23. Respondent refused to complete its scope of work to minimum workmanship standards without legal justification. 24. Respondent exceeded the scope of his Class C-21 contracting license by constructing sidewalks at Complainant’s residence. 25. Respondent failed to substantially comply with the Corrective Work Order. 26. Respondent’s refusal to complete the project to minimum workmanship standards, his performing work outside the scope of his Class C-21 contracting license and his failure to comply with the Registrar’s written directive to perform remedial repairs to his deficient workmanship are wrongful acts that substantially injured Complainant.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 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 violated the provisions of A.R.S. § 32-1154(A) (1), as cited in the Citation and Complaint issued by the Registrar. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. There was no evidence presented at the hearing establishing that Respondent violated local building codes or plans on Complainant’s project. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar. There was no evidence presented at the hearing to support that allegation. 8. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as cited in the Citation and Complaint issued by the Registrar. 9. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER

Respondent’s Class C-21 contracting license shall be suspended on the effective date of the Order entered in Case No. G07-1232 until the Registrar accepts Respondent’s written proof that he has fully complied with the Registrar’s Corrective Work Order and other deficiencies set forth in the above Findings of Fact. Respondent shall cause a properly licensed contractor to perform remedial repairs to items outside the scope of his Class C-21 contracting license at his sole cost and expense. If the Registrar accepts Respondent’s written proof of compliance with the above-described corrective work on or before the effective date of the Order entered in Case No. G07-1232, then the above-provided license suspension shall not take place. In addition to the foregoing indefinite license suspension, if any, Respondent’s Class C-21 contracting license shall be placed on probation for a period of 90 days commencing on the effective date of the Order entered in Case No. G07-1232 or the date of Respondent’s proper compliance approved by the Registrar, whichever is later. In addition to the above-provided penalties, if any, Respondent shall pay the sum of $500.00 to the Registrar 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 aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. G07-1232 shall result in the automatic revocation of Respondent’s contracting license, 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. 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, December 6, 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