ALJDEC decisions subject to certification as final

07F-M1197-ROC · Registrar of Contractors · 2007-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2007. APPEARANCES: Christopher Lee appeared personally. Elizabeth Alvarez Ramirez appeared personally. 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. Elizabeth Alvarez Ramirez, doing business as C R J Concrete (“Respondent”) is the holder of License No. 152529, a Class C-09 license, issued by the Registrar of Contractors (“Registrar”). 2. In October 2006, Respondent entered into a contract with Christopher Lee (“Complainant”) for the construction of a basketball court and the concrete for a Ramada at his residence. 3. Prior to entering into the contract, Complainant’s wife had viewed a basketball court constructed by Respondent at Circle G Ranch in Queen Creek, Arizona. 4. The contract price was $8,400.00. 5. Respondent had been recommended to Complainant by a neighbor of his in April 2006. The neighbor pointed out in an email to Complainant that a friend of his had used Respondent and “was very happy with their work.” 6. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent failed to properly construct the footing for the basketball backboard equipment, which had been purchased by Complainant. Respondent was not contracted to assemble the equipment.[1] 7. The assembly of the basketball backboard requires that the equipment be secured to a footer. 8. Complainant contends that the footer was included in Respondent’s scope of work and the contract price. Complainant did not present the parties’ contract at the hearing. 9. Respondent’s husband, Cesar Ramirez, negotiated the agreement with Complainant’s wife. Mr. Ramirez testified that the footer was added to the contract at a later date. 10. Complainant’s wife gave Mr. Ramirez the basketball backboard manufacturer’s specifications for the footer and plate upon which the equipment would be placed. Mr. Ramirez refused to read or follow the manufacturer’s specifications. 11. The manufacturer’s footer and plate specifications were intended to permit the equipment to be installed to regulation height and to allow drainage of water at its base. The plate upon which the equipment was to be connected during the assembly was specified to be ½” above the playing surface and level. 12. Respondent constructed the footer four inches below the playing surface. Therefore, the basketball backboard equipment could not be assembled to regulation height. 13. Mr. Ramirez testified that Mrs. Lee told him to construct the footer four inches below the playing field as he had done on the court she had examined prior to entering into the contract. However, that testimony is contradictory to the undisputed fact that Mrs. Lee presented the footer and plate specifications to Mr. Ramirez. 14. Respondent wanted an additional $700.00 to remove the existing footer and plate, and construct a new footer with plate per the manufacturer’s specifications. 15. Complainant could not find another contractor willing to remove the concrete footer. So Complainant rented equipment to remove it himself. 16. During the removal of the concrete footer, Complainant discovered that the footer had irregular shape, as if no form had been used when it was poured. 17. Complainant had to purchase a new base plate, since the one installed by Respondent could not be used again. 18. Complainant hired the Sports Authority to construct the new footer with base plate. The Service Work Order for the Sports Authority does not indicate if it is the holder of a contracting license. It is also unclear whether the invoice charges of $340.99 for assembly was for the footer and plate work, or if it also included the assembly and installation of the equipment. 19. Respondent’s construction of the footer did not meet minimum workmanship standards. The footer should have been constructed to the product’s specifications. 20. Respondent’s failure to construct the footer to specifications and minimum workmanship standards are wrongful acts that substantially injured Complainant. Complainant spent a total of $267.43 for equipment rentals at Home Depot and $60.18 for a new base plate. 21. Complainant has no complains with Respondent’s workmanship of the basketball court or the Ramada concrete work. 22. A review of the Registrar’s official records reveals that Complainant’s complaint is the only one appearing on 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)(7), as cited in the Citation and Complaint issued by the Registrar. 4. 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. 5. Pursuant to A.R.S. § 32-1156.01, Respondent has established an entitlement to restitution from Respondent in the amount of $327.61. Any other financial dispute by the parties should be resolved in a civil court of competent jurisdiction.

RECOMMENDED ORDER

Respondent’s License No. 152529 shall be suspended on the effective date of the Order entered in Case No. M07-1197 until the Registrar receives written proof, and approves such proof, that Respondent has paid restitution in the amount of $327.61 to Complainant. If Respondent pays restitution in the amount of $327.61 to Complainant on or before the effective date of the entered Order in Case No. M07-1197, then the above-provided license suspension shall not take place, and the Citation and Complaint in Case No. M07-1197 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, October 1, 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 ___________________________

----------------------- [1] The assembly instructions for the equipment recommend at least six adults for assembling and installing the backboard.

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