ALJDEC decisions subject to certification as final

07F-S0199-ROC · Registrar of Contractors · 2008-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25th, 2008; 9:00 a.m. APPEARANCES: Complainant, Mr. Waleed Almasri, represented himself. Respondent, Mr. Anthony Wayne Dexter, was represented by Mr. Joe Machado, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was convened in the Office of Administrative Hearings, Tucson, on March 25th, 2008, at 9:00 a.m. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

CONCLUSIONS OF LAW 1. Respondent, Mr. Anthony Wayne Dexter, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-01 License number 201494.

2. Complainant, Mr. Waleed Almasri, is a business owner operating out of a four-unit commercial building in Rio Rico, Arizona. This matter concerns the parties’ written contract and changes made thereto, for construction of the building. The parties contracted for the work on or about September 22nd, 2005. 3. Complainant filed the instant Complaint in the Registrar of Contractors on April 30th, 2007, alleging several workmanship defects, and material departures from the contract or plan specifications. 4. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves who conducted a job site inspection in the presence of Complainant and Respondent on May 24th, 2007. Inspector Nieves issued a written Corrective Work Order to Respondent dated May 25th, 2007. 5. The CWO directed Respondent to take corrective action on eight items of the Complaint. Inspector Nieves testified at the hearing that in ordering this work he was not familiar with any changes in the plans or specifications, or verbal change orders that the parties might have made which could have affected his decision to order corrections. 6. The greater weight of evidence proved that there were significant changes made to the original set of plans which materially affected the project. There is credible evidence on both sides as to verbal change orders agreed to by the parties, and the evidence proves a number of written change orders. Complainant seems to deny that the verbal change orders were made or had any significance to the project. 7. Respondent’s testimony was, and the greater weight of evidence proved, that some of the significant changes were made to accommodate the project for tenant improvement changes, electrical supplier’s fixture adaptation, and one was forced on the project by the requirements of the American with Disabilities Act. In short, the parties have stark disagreements over what was the scope and nature of the contracted work. 8. There is one aspect of the work, however, that is distinctly a workmanship issue. That is the problem with the exterior stucco. Inspector Nieves ordered the Respondent to return and correct “voids in stucco.” Respondent testified that he sent a crew to do this work, but that the Complainant, not knowing or understanding who his crew was or their purpose in being on his property, ordered them to leave. Thus the stucco repairs were never made. 9. Almost all of the remaining issues between these parties are contractual in nature, and should be more properly resolved, if at all, in a civil court of competent jurisdiction. The stucco repairs still must be made, and the Complainant must allow reasonable access for Respondent to make them. 10. 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. Respondent’s workmanship on the stucco was below standards pursuant to A.A.C. R4-9-108, and therefore in violation of A.R.S. 32-1154.A.3, as alleged. 4. Respondent did not violate A.R.S. 32-1154.A.23 in failing to repair the stucco for he was not allowed reasonable access to do so. 5. The remaining issues relative to the allegation of violating A.R.S 32-1154.A.2, are contractual in nature, and should be more properly resolved, if at all, in a civil court of competent jurisdiction. 6. There is no evidence of any wrongful or fraudulent actions on the part of the Respondent in this case constituting a violation of A.R.S. 32-1154.A.7 independent of the faulty stucco.

RECOMMENDED ORDER In view of he foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B-01 License number 201494 be suspended until the Registrar receives written proof that the Respondent has properly accomplished the repair of stucco voids as contained in the agency Inspector’s Corrective Work Order. It is further recommended that if 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 take place, and Citation and Complaint No. S07- 0199 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. The Complainant is advised that any unreasonable denial of access to the Respondent or the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline. Done this day, April 1st, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488