ALJDEC decisions subject to certification as final

2011A-595-ROC · Registrar of Contractors · 2011-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Nathan Wright. 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 KB-1 (No. 176182) License issued by the Registrar of Contractors. 2. This is a commercial matter where the Respondent performed extensive construction work on a large commercial project for the Complainant. 3. There was no dispute that the construction work included the construction of several new buildings, the remodeling of existing buildings, parking lot construction and new paving, the construction of new walls, and applying new stucco and paint to the new walls and existing walls on a commercial project identified as the Lodge on the Desert located at 306 N. Alvernon Way, Tucson, Arizona. 4. After a period of time, the Complainant became increasingly dissatisfied with the appearance of the paint and stucco on the new and existing walls around the Lodge on the Desert and complained about the appearance of the walls to the Respondent. 5. When the Respondent failed to comply with the Complainant’s repeated demands to correct the appearance of the new and existing walls to his satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. 7. As part of his onsite inspection, the assigned Agency Inspector prepared jobsite inspection notes. 8. The assigned Agency Inspector’s jobsite notes provide, in relevant part as follows: South of entry monuments= lots of block telegraphing (but w/ efflorescense) [sic]. Comp. dislikes the telegraphing but there is same telegraphing on the walls to north of entry monuments (which the comp. likes) but no tell-tale efflorescense [sic]. There is disagreement w/ the plaster texture. South of the monument, the texture is a rough sand finish, then some what [sic] smooth but accentuating the blocks, then rough sand, etc. going north to south. My opinion is that the texture appearance is acceptable, but the comp. claims that this is not what he wanted. The resp. claims that this is what the comp. asked for and even approved it after the texture was completed. Comp. dislikes the tie-ins (texture) at both monuments. My opinion is that the texture is not a match (existing is somewhat smoother and causes the paint to look lighter). 9. On February 18, 2011, the assigned Agency Inspector issued a written Corrective Work Order directing the Respondent to provide designated corrective work on the Lodge on the Desert. 10. The Corrective Work Order provides, in pertinent part, as follows: The jobsite inspection found a mismatch of texture at the tie-in of both the north entry monument and the south entry monument. Contractor is to correct by appropriate means. There is efflorescence on the east side of the wall that is south of the monuments. Contractor is to correct by appropriate means.

11. Credible testimony and evidence established that although the Respondent disagreed with the terms of the Corrective Work Order, the Respondent repeatedly mobilized its employees and equipment and attempted to gain access to the Complainant’s property in order to perform the corrective work set forth in the written Corrective Work Order. 12. Credible testimony and evidence established that the Complainant repeatedly denied access to the Respondent. 13. Credible testimony and evidence established that the Complainant’s actions in repeatedly denying access to the Respondent were unreasonable. 14. Credible testimony and evidence established that the Complainant’s repeated refusal to provide reasonable access to the Respondent prevented the Respondent from complying with the terms of the Corrective Work Order issued in this matter. 15. Credible testimony and evidence presented at hearing established that the Complainant has caused another licensed contractor to perform work on the wall areas around the entry monuments and that the alternative contractor has modified and altered the construction work on the wall areas around the entry monuments that had been performed by the Respondent. 16. Credible testimony and evidence presented at hearing established that the texture work at the tie-ins of both the north entry monument and the south entry monument was performed in a professional and workmanlike manner and installed in accordance with the Complainant’s directions and with the Complainant’s approval. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes in this matter. CONCLUSIONS OF LAW 1. The Complainant has 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. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the charged provisions of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner), as charged in the Citation and Complaint.. 5. A.R.S. § 32-1155 (C) provides as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. . 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, September 12, 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