ALJDEC decisions subject to certification as final

09F-0021-ROC · Registrar of Contractors · 2009-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2009 APPEARANCES: Complainant Anne Gardner appeared on her own behalf. Aldo Schritter appeared on behalf of Respondent Guyco Construction, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Guyco Construction, Inc. (“Guyco”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT Guyco is the holder of a Class B- license (No. 205608) issued by the Registrar of Contractors (“ROC”). Aldo Schritter is Guyco’s qualifying party and corporate officer. On April 11, 2008, Complainant Anne Gardner contracted with Guyco for Guyco to provide and install two walkway gates and an RV gate at her home located at 1528 West Desert Ranch Road in Desert Hills, Arizona. See Exhibit B. The contract price was $2,352.00. Id. Ms. Gardner paid a $1,175.00 deposit to Guyco. The contract states the following in pertinent part: BINDING PROVISIONS This document, when signed by the Purchasers (hereinafter called Purchaser), becomes a binding offer to purchase the goods and services from Guyco Construction Inc. (hereinafter called the Company), as a contract for the construction of a certain fence as hereon described and according to the specifications herein set forth. When the offer is accepted by the Company, at the Company offices or when the Company’s crew arrives at the job site to begin work, whichever event occurs first, this document becomes a binding contract between the parties unless revoked in writing by the Purchaser . . . . In the event that Purchaser should refuse to permit the Company to commence or to continue work at any time after this contract becomes binding, as above provided, it is agreed that the Company shall incur damages equal to no less than 25% of the contract price as stipulated and liquidated damages. Refusal on the part of the Purchaser to permit the Company to complete construction, one (sic) the same has been commenced, will obligate Purchaser to pay the Company in full for all costs and expenses, pertaining to this contract, which the Company may have incurred at the time of SUCH refusal and additionally for damages equal to the Company’s anticipated profit on the job.

See Exhibit B, page 2. (Emphasis in original.) Approximately one month later, Guyco delivered and installed the RV gate and one walkway gate. However, the second walkway gate needed to be trimmed. As such, Guyco employees did not install the third gate, but rather took it back to the shop to be trimmed. After the installation of the two gates, Ms. Gardner instructed Guyco’s employees to remove the gates and canceled the job. On July 1, 2008, Ms. Gardner filed a complaint against Guyco with the ROC alleging the following: “15 ft. wide R.V. gate frame material, square tube stock, too light for such a span. Gates flexed and bent to excess in gusting wind.” ROC Inspector Jim Dimond investigated Ms. Gardner’s complaint. On July 24, 2008, Inspector Dimond conducted a jobsite inspection. Only Ms. Gardner was present for the inspection. On July 31, 2008, following the jobsite inspection, Inspector Dimond issued a Corrective Work Order (“CWO”) under which the ROC gave Guyco 15 days to take corrective action as follows: The gates were not present at inspection but 2 of them appear to have been installed at one time. Contractor has gates in his possession. Contract allows for remedy of termination. Contractor is to either install the gates as contracted or abide by paragraph 3 (binding provisions) of his contract in order to resolve the matter in an appropriate manner.

Inspector Dimond testified that he did not conduct a pre-hearing inspection. On June 30, 2008, Ms. Gardner contracted to have the gates replaced by another contractor at a cost of $3,030.00.[1] Ms. Gardner testified that the gates as installed by Guyco were “so weak” and “flimsy”. However, Ms. Gardner failed to present any probative or substantial evidence establishing such contention. The credible evidence of record established that Guyco delivered and installed the gates for which Ms. Gardner contracted and to the specifications chosen by Ms. Gardner. Mr. Schritter credibly testified that the gates cannot be returned to the manufacturer because they were specially ordered to fit on Ms. Gardner’s property to her specifications. Mr. Schritter testified that the gates are designed and engineered to withstand 100 mph winds. Mr. Schritter further credibly testified that Ms. Gardner wanted the gates removed because she thought they were “ugly” and that she wanted them to look like the gates installed at her son’s home next door. Mr. Schritter testified that had Ms. Gardner wanted gates resembling her son’s, she should have taken him next door to view the gates, and then he could have given her an estimate on that product. Ms. Gardner did not do so. Ms. Gardner also had an option for stronger gates. However, Ms. Gardner did not choose that option because it was more expensive. CONCLUSIONS OF LAW In this proceeding, Ms. Gardner bears the burden to prove, by a preponderance of the evidence, that Guyco is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(13), and/or (A)(23) as charged by the ROC in its February 25, 2009 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Gardner failed to meet her burden of proof as to all four of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Guyco with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Ms. Gardner failed to establish that Guyco did not perform its work in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Guyco is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include its contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Ms. Gardner did not address this alleged violation. However, a copy of the parties’ contract was submitted into evidence by Guyco (Exhibit B). That document contains the letters “ROC” preceding Guyco’s license numbers. In view of the foregoing, the Administrative Law Judge concludes that Guyco is not in violation of A.R.S. § 32-1154(A)(13). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Guyco a CWO directing it to resolve the matter. The credible evidence of record established that Ms. Gardner breached the contract and chose to have different gates installed by another entity. Therefore, the Administrative Law Judge concludes that Guyco is not in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Ms. Gardner failed to establish that Guyco committed wrongful or fraudulent acts that substantially injured her. Therefore, the Administrative Law Judge concludes that Guyco is not in violation of A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Guyco’s license. The ROC’s Citation in Case Number 09-0021, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Guyco’s license, and that the Citation issued in Case Number 09-0021, together with the Complaint upon which it is based, be dismissed. 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, August 17, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The Proposal submitted into evidence by Ms. Gardner does not contain the name, nor the license number of the subsequent contractor. See Exhibit 4.

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