ALJDEC decisions subject to certification as final

08F-2370-ROC · Registrar of Contractors · 2009-04-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 9, 2009

APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president and qualifying party, Ron Chelednik (“Ron”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to accomplish specified landscape related work on her home. Complainant alleges certain deficiencies in Respondent’s work on the project, as well as other contracting law violations. The facts surrounding this claim are discussed in the findings below.

2. Complainant received a written proposal from Respondent on December 13, 2007. The bid was accepted by Complainant and on January 29, 2008 Respondent commenced work on the project, wherein it began work on constructing two walls on the property. Both of these walls were labeled as retaining walls on the applicable bid.

3. Complainant asserts that Respondent’s initial work on the project was substandard and thus she notified Ron that she was terminating the contract and he should return and remove all of Respondent’s work on the two walls. She ultimately stopped payment on the check she had presented to Respondent for a down-payment on the project. Thus, as of the date of the instant hearing, Complainant has not paid Respondent anything for its work on the project.

4. When the parties were unable to resolve the issues of their dispute, Complainant filed the instant Complaint with the Registrar of Contractors. After the Complaint was filed it was assigned to one of the Registrar’s inspectors. The inspector appeared at the instant hearing and presented testimony.

5. The salient portions of the inspector’s testimony included the following:

a. Since the walls constructed by Respondent were retaining walls, a permit was required by the local building authority and Respondent failed to obtain a permit; b. He found deficiencies in the construction of the walls, as manifested by the failure to install rebar in the retaining walls, failure to properly stagger the blocks, a failure to insert mortar between vertical joints in the walls, and areas of the walls which were not constructed on a straight plane; c. Respondent’s bid shows that he was offering to construct one wall that was to be five (5) courses of block. This would make the wall over three (3) feet high and Respondent’s C-21R license does not allow Respondent to bid or construct any wall over three (3) feet; d. After concluding his inspection, the inspector issued a Corrective Work Order (“CWO”), directing Respondent to remove the two retaining walls and reconstruct the walls; e. Complainant did not want Respondent to perform any further work on the project, so she would only allow Respondent to remove the walls and haul-off the debris; and f. The inspector conducted a pre-hearing inspection and at that time he observed one of the walls had been removed by Respondent but not the other. Thus, Respondent had not fully complied with the CWO.

6. The inspector was shown to have extensive experience in concrete work, as well as construction of retaining walls. His testimony was found to be credible.

7. Ron testified that although Respondent’s bid shows a five (5) course block wall, this was nothing more than a typographical error. He prepared the document and meant to show a three (3) course wall, not a five (5) course wall.

8. Ron does not believe that a permit was required for the project, nor does he believe that rebar was required in the walls since he does not feel they were actually retaining walls. He asserts that the walls were ornamental in nature, despite the fact that his bid shows them as retaining walls. According to the testimony of the Registrar of Contractors’ inspector, any wall that holds back dirt is a retaining wall and these walls were holding back dirt.

9. Ron has refused to remove the one remaining wall, due to the fact that Complainant has failed to pay him anything for his time on this project. Moreover, he disputes the findings of the Registrar of Contractors’ inspector that there is anything deficient in the construction of the one remaining wall.

10. It is determined and held that the weight of the credible evidence of record supports a finding that the construction of the walls was indicative of substandard and unacceptable workmanship due to the failure to install rebar in walls which were, in fact, retaining walls; failure to properly stagger the blocks; a failure to insert mortar between joints in the block wall; and areas of the walls which were not constructed on a straight plane. In addition, it is further determined that the record presented herein supports a finding that a permit was required for the work performed by Respondent.

11. Respondent is fully responsible for the content of any bid that it submits to perform contracting work. Regardless of any claim that there may be a typographical error on the bid, the written document shows Respondent bidding to perform work that is beyond the scope of its license. Nevertheless, the explanation regarding a typographical error should be considered as a matter in mitigation for any disciplinary sanctions to be imposed by the Order entered in this matter.

12. Respondent was shown to have failed to comply with the terms and conditions of an official Agency directive by not removing the one remaining wall and hauling-off the debris.

13. Ron continues to assert that Complainant owes Respondent money for its work on the project. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to resolve Respondent’s claim for compensation for its work on the project. In the event Respondent continues to claim entitlement to compensation from Complainant, Respondent will need to commence an action in a civil court of competent jurisdiction.

14. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been suspended by operation of law for failure to renew since July 1, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license.

15. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant Complaint was the only Complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (17), (7), (2), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent removes the one remaining wall and hauls-off the debris from said work, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-21 license shall be placed on a period of disciplinary probation for ninety (90) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, as a condition precedent to Respondent performing the above-described remedial work, that Respondent must first terminate the suspension of its license and properly renew said license. Any failure to bring the license into good standing, will prevent Respondent from complying with the aforementioned condition to avoid the license revocation. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $125.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, April 13, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors William A. Mundell c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________

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