ALJDEC decisions subject to certification as final

08F-T1187-ROC · Registrar of Contractors · 2009-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2009; 9:00 a.m. APPEARANCES: Complainant Frances Residential Care Home was represented by Mr. Mike Ramirez, owner. Respondent M C Fire Protection, LLC was represented by Mr. Mike Cutler, Managing Member. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. 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 M C Fire Protection, LLC, is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class L-16 License number 204466. 2. Complainant is a residential care home located in Tucson, Arizona. Complainant contracted with Respondent in 2008 for Respondent to install a fire sprinkler system in the home. 3. Soon after installation the owner of the Complainant perceived a number of defects in the work, and sloppiness at the work site. He filed the instant Complaint in the Registrar of Contractors’ office on March 25, 2008. 4. The Complaint was assigned to Registrar of Contractors Inspector Frank Grochocki who conducted a job site inspection on May 13, 2008. As a result of his job site inspection Inspector Grochocki issued a written Corrective Work Order (CWO) to the Respondent dated May 14, 2008. 5. The Inspector noted in his CWO that most of the 13 Complaint items listed by the Complainant required no action by the Respondent, being items that had been corrected already or unable to be confirmed. 6. Only four items were ordered to be corrected by the Inspector. At the administrative hearing the Inspector testified that he conducted a pre-hearing inspection on April 15, 2009 and found that Items ##11 (phone pole guide wires in alley had been broken) and 12 (cap missing on one sprinkler head) had been properly replaced. The Inspector testified and the Complainant concurred that Item #13 (poor patching of stucco by electric meter where installation pipe had to penetrate) had also been corrected. 7. The only remaining item on the Complaint that was still in dispute at the hearing was Item #5 pertaining to cleaning up the debris left after the work. The Inspector noted in his CWO that he had found “concrete and dirt in the alley on side.” He ordered Respondent to clean this up. 8. Respondent’s owner Mr. Mike Cutler credibly testified that his crew left no concrete or dirt on the site, and in fact never brought any dirt, concrete or rocks to the dirt site. The job he was contracted to do required no import of dirt, concrete or rocks. 9. Respondent’s documentary evidence includes a photo taken from the internet website Google earth depicting the alley prior to the construction. It depicts the existence of rocks and concrete at the area prior to the Respondent performing any work there. 10. Inspector Grochocki testified at the hearing that although he ordered Respondent to clean up the dirt and concrete, he had never confirmed the source of that debris. 11. Complainant’s owner Mr. Mike Ramirez first testified that he saw two guys in a red pickup truck haul in dirt to the job site and dump it. Then he testified that he did not see any rocks dumped, only concrete. Then he testified that he did not see the men in the red pickup dump any dirt or rocks, but was told that they had. 12. The greater weight of evidence proved that Respondent brought no dirt, concrete or rocks to the jobsite, nor dumped any there.

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.7, 23 and 3 (namely, A.A.C. R4-9-108). 3. The greater weight of evidence proved that Respondent had not failed to perform any item on the CWO without valid justification, had not performed below workmanship standards, and had not performed wrongfully or fraudulently in any respect in the performance of this contracted work. There were no violations of the statutes cited in the Citation and Complaint. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint T08-1187, together with the Complaint on which it is based, be dismissed 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, April 27, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to: William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com