ALJDEC decisions subject to certification as final

2010A-308473545-ROC · Registrar of Contractors · 2011-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 3, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Charles L. Licurse. The Respondent appeared through its authorized representative, Ernesto Madril. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-14 (No. 239423) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainants to remove and haul away an old 197’x6’ wood fence and replace the old fence with a new 197’x6’ iron wood fence with two 4’x6’ walk gates at a residence the Complainants’ residence, located at 7219 N. Case Blanca Dr., Oro Valley, Arizona, for the total sum of $6,126.27. 3. There was no dispute that the Respondent constructed the iron wood fence and that the Complainants were very dissatisfied with the appearance of iron wood fence. 4. Credible testimony and evidence established that the Complainants expressed their dissatisfaction to the Respondent and that the Respondent removed and replaced approximately one hundred (100) wood pickets on the new iron wood fence. 5. The Complainants were still dissatisfied with the Respondent’s workmanship on the new iron wood fence and with the Respondent’s failure to correct its work on the new fence to their satisfaction despite their repeated demands that the Respondent do so. 6. When the Respondent failed to correct their new iron wood fence to their satisfaction, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on July 12, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. The Corrective Work Order provides, in pertinent part, as follows; 1) Complaint of: “206 pickets warped, split, missing knots, and loosely mounted’, jobsite inspection found 1 picket not nailed at bottom rail, 2 pickets w/warp in excess of ½”, 1 picket broken off at bottom, contractor to correct these pickets by appropriate means. Jobsite found numerous pickets w/splits and knots normal for wood fencing, no action required. 2) Complaint of: “Broken gate lock latch bolt”, jobsite found gate latch bolts loose, contractor to correct by appropriate means. 3) Complaint of: “Picket w/paint overspray”, jobsite found 1 picket w/paint overspray, contractor to correct by appropriate means. 9. The Complainants sharply disagreed with the findings of the assigned Agency Inspector and requested a hearing. 10. There was no dispute that the Complainants did not own the residence located at 7219 N. Casa Blanca, Oro Valley, Arizona, on the date of the onsite inspection. 11. Credible testimony and evidence established that the new owners of the property gave permission to the parties and the assigned Agency Inspector to conduct an onsite inspection on the date of the onsite inspection. However, the new owners refused the performance of any of the directed corrective work as they intended to remove the new iron wood fence from the property. 12. The Complainants sharply disagreed with the terms of the Corrective Work Order asserted that over two hundred (200) of the wooden pickets in the iron wood fence require proper removal and replacement, that numerous pickets were covered with paint overspray, and that the gate lock latch bolt was broken not loose. 13. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of the new iron wood fence at the residence at issue are understandable, construction work, such as that at issue herein, is not a perfect science, and the Registrar of Contractors does not apply perfection standards when judging workmanship. 14. The standard for judging workmanship, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 15. There was no dispute that many of the pickets in the iron wood fence had splits or knots. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that all of the pickets in the iron wood fence that contained knots or splits failed to comply with applicable workmanship and industry standards and required correction or that there was any paint overspray on the wood pickets beyond the overspray on the one picket specified in the Corrective Work Order. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the gate latch bolt was broken rather than being loose as set forth in the Corrective Work Order. 18. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ iron wood fence failed to comply with applicable workmanship and industry standards as set forth in the Corrective Work Order. 19. There was no dispute that the Respondent performed no corrective work on the iron wood fence in response to the issuance of the written Corrective Work Order. 20. Credible testimony and evidence established that the Respondent was denied reasonable access to the residence at issue and that as a consequence of the unreasonable denial of access, the Respondent was unable comply with the terms of the Corrective Work Order. 21. In view of the denial of reasonable access to the Respondent, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action) is supportable. 22. Credible testimony and evidence established that the parties are currently embroiled in a monetary dispute regarding the Respondent’s efforts to collect the remaining sum of money allegedly due from the Complainants under the terms of the parties’ construction agreement. 23. The parties’ monetary dispute can be resolved in a civil court of competent jurisdiction. 24. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Undisputed credible testimony and evidence supported a finding that the new owners of the property at issue have denied access to the Respondent to perform the corrective action set forth in the written Corrective Work Order. Consequently, no finding of a violation by the Respondent of the charged provisions of A.R.S. §32-1154 (A) (23) (Failure to take appropriate corrective action) is supportable. 5. The credible evidence of record supported findings which establish a violation by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (3), namely, rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be placed on disciplinary probation for a period of thirty (30) days. In the event of certification of this 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 the certification. Done this day, March 14, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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