ALJDEC decisions subject to certification as final

07F-H0221-ROC · Registrar of Contractors · 2009-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2009. APPEARANCES: Deborah Stair appeared personally and was represented by her attorney, Michael J. Dergo, Esq. Cobalt Enterprises, Inc., doing business as Cobalt Construction, was represented by its vice president, Kim Comacho. 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. Cobalt Enterprises, Inc., doing business as Cobalt Construction (“Respondent”) is the holder of License No. 197725, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about June 22, 2006, Respondent entered into a written agreement with Deborah Stairs (“Complainant”) for work to be performed at her residence located in Bullhead City, Arizona. 3. The parties’ contract provided for the following scope of work to be performed by Respondent: New Block & Wrought Iron Fence

Lineal Feet of 6ft. height Block Wall Lineal Feet of 4ft. height Bock Wall Lineal Feet of Wrought Iron Atop Lineal Feet of 6ft. height Block Wall Lineal Feet of 6ft. height Wrought Iron Separation Fence

Ft. Wrought Iron Gate at 6ft. height on a slider Ft. Wrought Iron Gate at 6ft. height Ft. Wrought Iron Gate at 6ft.height

Estimate Includes:

- Excavation - Block to be Standard Grey in Color - Grading at Back yard area at no additional cost - Removal of Palm Trees at no additional cost

Total: $7100 + Tax(5.1025%)$362.28= $7462.28 Price does not include permit. Permit price varies by size of fence. Permits average $150-$300.

4. The parties’ contract also contained the following provision:

All material is guaranteed to be as specified. All work to be completed in a professional manner according to standard practices. Any alteration, deviation, additions or deletions involving changes in materials or labor costs from above specifications will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements must be made in writing and signed by both parties. All agreements are contingent upon delays beyond our control. Cobalt Construction will provide all Workman’s Compensation Insurance for it’s [sic] employees, and Liability Insurance for the project.

5. The amount due on the parties’ contract is $1,962.28. 6. The terms “walls” and “fences” are used interchangeably in the construction industry. The walls constructed by Respondent were not retaining walls. 7. On or about November 16, 2006, Complainant filed a written Complaint with the Registrar alleging the following deficiencies by Respondent on the project:

Sloppy work, did not follow directions – instead doing it his own way, then asking for more money to correct problem. I believe the wall is improperly put up. Gates don’t fit. Had another co. fix main gate.

8. The Registrar designated Complainant’s Complaint as Case No. H07-0221. 9. In response to the Complainant’s Complaint, the Registrar’s assigned inspector, Bill Redman, performed a jobsite inspection on December 13, 2006. 10. During the December 13, 2006 jobsite inspection, the parties agreed to changes and corrections to the project’s scope of work. On that date, Complainant drafted and signed a handwritten agreement in the presence of Inspector Redman. 11. On or about December 22, 2006, Inspector Redman issued a written Corrective Work Order, which provided for the following: Complete all work agreed to in the signed agreement dated 12-13- 06. All work to be performed in a good and workmanlike manner.

12. It is uncontroverted that Complainant denied Respondent access to comply with the parties’ December 13, 2006 agreement and the Corrective Work Order dated December 22, 2006. Respondent was ready, willing and able to perform the agreed upon work. Complainant is found to have unreasonably denied access to Respondent without legal justification. 13. Complainant’s accusation that Respondent bought substandard wrought iron because he purchased it at Home Depot is not supported by the evidence of record. 14. Respondent admits that it deviated from specifications by constructing Linear Feet of 6ft. Block Wall instead of 55 Linear Feet. However, Respondent has not been able to correct that deviation due to Complainant’s unreasonable denial of access. 15. There is credible evidence that Complainant’s dogs have dug under the wall constructed by Respondent resulting in damage to her adjoining neighbor’s block wall. The damage to Complainant’s block wall is found to be caused by the neighbor’s wall leaning on her wall. Complainant’s wall was not specified or constructed to be a retaining wall. 16. Complainant made several requests for changes on the project, but she was unwilling to pay Respondent for those changes. 17. Respondent’s deviation in the length of the wall is a wrongful act, but Complainant failed to present credible evidence that such deviation caused her substantial injury. 18. A review of the Registrar’s official records reveals that Respondent was issued its contracting license on July 13, 2004. The Complainant’s Complaint is the only complaint against Respondent’s license.

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) (2), as cited in the Citation and Complaint issued by the Registrar. The factual basis for this conclusion is Respondent’s deviation from the specification to construct 55 Lineal Feet of 6ft. height Block Wall by actually constructing it as 56 Lineal Feet. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Complainant unreasonably denied Respondent access to her property necessary to perform the agreed upon work in the parties’ December 13, 2006 jobsite agreement, which Inspector Redman incorporated by reference into his December 22, 2006 Corrective Work Order. 5. Respondent did violate 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. The factual basis for this conclusion is Respondent’s above-described deviation from the specifications for the Block Wall. Respondent was denied reasonable access by Complainant to perform the scope of work in the December 13, 2006 jobsite inspection. 6. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Complainant failed to sustain her burden of proving that Respondent caused her substantial injury. 7. Complainant has requested restitution in this matter, pursuant to A.R.S. § 32-1156.01 That statute provides that the Administrative Law Judge has the discretion to recommend restitution in this matter. The Administrative Law Judge concludes that Complainant failed to establish an entitlement to restitution in this matter. But for Complainant’s unreasonable denial of access to Respondent, the scope of work agreed upon by the parties on December 13, 2006 could have been performed.

RECOMMENDED ORDER Respondent’s License No. 197725 shall be suspended on the effective date of the Order entered in Case No. H07-0221 until the Registrar receives written proof that Respondent has fully complied with the parties’ December 13, 2006 agreement, and the Registrar accepts such proof. If the Registrar receives written proof that Respondent has been denied reasonable access to the subject property by Complainant on or before the effective date of the Order entered in Case No. H07-0221, then the above-provided license suspension shall be stayed pending a compliance hearing. If Respondent submits written proof to the Registrar that it has fully complied with the parties’ December 13, 2006 agreement on or before the effective date of the Order entered in Case No. H07-0221, and the Registrar approves such proof, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. H07-0221 shall be closed. 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, February 11, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Armando Contreras, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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