ALJDEC decisions subject to certification as final

07F-T0278-ROC-COM · Registrar of Contractors · 2007-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15th, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. Ron Oscislawski, represented himself. Respondent, Grahma Construction, LLC, failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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.

FINDINGS OF FACT 1. Respondent, Grahma Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-31 License number 214636. 2. Complainant, Mr. Ron Oscislawski, is a homeowner residing in Tucson, Arizona, who contracted with Respondent in May of 2006, for Respondent to construct a retaining wall with pillars at Complainant’s residence. The contract price was $5,000.00, one- half of which has been paid. 3. The administrative hearing held in this matter on the above- referenced date was a compliance hearing, held pursuant to an Order by the Arizona Registrar of Contractors issued on April 9th, 2007.

4. The original Complaint was filed by Complainant in the Tucson office of the Registrar on August 18th, 2006. 5. On September 8th, 2006, the assigned agency Inspector, Richard C. Allen, issued a letter to the parties stating that since the Complainant was refusing to allow Respondent access to the job site, and intended to complete the project himself, the Complaint would be closed. Complainant disagreed with the content of the letter, and requested an administrative hearing. 6. Accordingly, Citation and Complaint issued from the Registrar’s office citing Respondent with possible violations of A.R.S. 32- 1154.A.2, 7, and 3 (namely A.A.C. R4-9-108, (Workmanship Standards). Respondent failed to timely file any Written Answer to the Citation and Complaint; therefore, the Registrar issued a Default Judgment in favor of the Complainant on January 19th, 2007. The Decision and Order suspended the subject license until such time as the Registrar would receive proof that Respondent had “appropriately rectified the issues involved and detailed in the Complaint[.]” The Registrar noted in the Decision and Order that in accordance with A.R.S. 32-1155.B., the charges contained in the Citation and Complaint were now taken as true. 7. Respondent asked the Registrar for a rehearing. The Registrar denied the rehearing in the same Order setting this matter for a compliance hearing. The compliance hearing was duly scheduled, noticed and held. Respondent, consistent with its prior actions, failed to appear at the compliance hearing. 8. Complainant appeared at the compliance hearing, as did Inspector Allen. Both of these gentlemen testified, and Complainant offered additional evidence in the form of photographs, a registered engineer’s opinion of the project who had been hired by and was overseeing the project for Complainant, drawings and specifications, and the subject contract. 9. The credible evidence proved that Respondent had failed to follow the engineer’s plans for the retaining wall in several material respects without Complainant’s consent. These deviations also put the project in violation of the local building code as to the rebar and failure to properly grout. 10. Complainant and Complainant’s engineer tried to work with Respondent to give him options for correcting the wall while construction was in progress. Respondent by word and deed manifested his displeasure with the criticism of his work and the offered method of correcting it, but expressed willingness to make the changes. The engineer’s directions for correcting the wall were not followed by Respondent, and again the wall was in a condition which violated the local code. 11. When Complainant and the engineer confronted Respondent with his poor workmanship, Respondent became irate at the job site, began throwing tools and dumped still-liquid concrete mixture on the ground, and told Complainant he was leaving the job. The engineer was by then exasperated and he too left the job. 12. Complainant was forced to pay others to complete the project. He is seeking damages in civil court. He seeks revocation of Respondent’s license in this action. 13. 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, and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. A.R.S. 32-1155.B. provides that in cases where the Respondent fails to file a Written Answer to the Citation and Complaint, “the acts charged in the complaint” shall be deemed admitted. 4. The acts of Respondent in this case proved a violation of A.R.S. 32-1154.A.2, in the material deviations from the plans, specifications and applicable building code, prejudicial to Complainant and without his consent. 5. The acts of Respondent in this case also prove substantial violations of A.A.C. R4-9-108, in the poor workmanship, and other unprofessional conduct by Respondent, in violation of A.R.S. 32- 1154.A.3. 6. There is no violation of A.R.S. 32-1154.A.7 by Respondent in the facts of this case independent of the violations already concluded to have occurred.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class C-31 License number 214636 be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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. Done this day, October 19th, 2007.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

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