ALJDEC decisions subject to certification as final

07F-M1959-ROC · Registrar of Contractors · 2008-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2008. APPEARANCES: Tony Rowe appeared personally. La Paz Concrete, Inc. was represented by its authorized representative, Frank Paz. 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. La Paz Concrete, Inc. (“Respondent”) is the holder of License No. 158418, a Class C-09 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Tony Rowe (“Complainant”) had a new swimming pool and deck project at his residence. 3. Build Your Own Pool was Complainant’s general contractor for the swimming pool. 4. Respondent was hired to construct a deck between the swimming pool and an existing concrete patio. 5. Several months after Respondent completed its scope of work, Complainant noticed problems with Respondent’s workmanship. Complainant agreed to wait until winter to determine the extent of the deficient workmanship. 6. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. 7. In response to the filed Complaint, the Registrar’s assigned inspector, Geoff Galgan, performed a jobsite inspection to view Respondent’s workmanship. 8. Inspector Galgan observed that the deck constructed by Respondent is raised at the deco drain by the existing patio. 9. Inspector Galgan issued a Corrective Work Order, which required Respondent to perform remedial repairs to specific areas. The Corrective Work Order also absolved Respondent of several items. Complainant did not agree with Inspector Galgan’s conclusions that several items did not require remedial work to be performed by Respondent. 10. Upon receiving the Corrective Work Order, Respondent contacted Complainant to schedule the required repairs. Complainant did not want Respondent to perform the repairs until a separate issue of rebar work by another contractor got resolved. 11. The Registrar issued a Citation and Complaint in Case No. M07-1959 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23) and (3), namely A.A.C. R4-9-108. 12. Respondent has been ready, willing, and able to comply with the written directive, but Complainant has not allowed Respondent to perform the repairs. 13. Respondent’s deficient workmanship did not substantially injure Complainant. 14. A review of the Registrar’s official records reflects that Complainant’s Complaint is the only one listed against Respondent’s contracting license. Respondent was issued its contracting license on September 12, 2000.

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 provision 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 in Case No. M07-1959. 4. 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 in Case No. M07-1959. Complainant failed to sustain his burden of proving that he was substantially injured by Respondent. 5. 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 in Case No. M07-1959. Complainant’s denial of access to his property prevented Respondent’s timely compliance with the written directive.

RECOMMENDED ORDER

Respondent’s License No. 158418 shall be suspended on the effective date of the Order entered in Case No. M07-1959 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has fully complied with the terms of the Corrective Work Order issued in this matter. If Respondent properly accomplishes the aforementioned corrective work, or if Complainant unreasonably denies Respondent access to the property necessary to timely comply with this Order, on or before the effective date of the Order entered in Case No. M07-1959, then the above- provided license suspension shall not take place and the Citation and Complaint issued in Case No. M07-1959 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 25, 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 ___________________________

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