ALJDEC

97F-2474-ROC · Registrar of Contractors · 1997-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 1997

APPEARANCES: Complainant, Mary Beth Miller, appeared in her own behalf.

Respondent, Mickey Finn's Construction, appeared through its owner and qualifying party, Herman Otto ("Mickey") Finn.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent is presently the holder of Class B License Number 121357 issued by the Registrar of Contractors on February 26, 1997.

2. Prior to the issuance of its contractor's license, Respondent had submitted a bid to Complainant on January 31, 1997 for the construction of a block fence at the rear of her residence. This proposal ripened into a contract on February 1, 1997 at which time the contemplated work was expanded to include a 10-foot wide double gate and a 3-foot wide single gate. The originally quoted price of $1,400.00 was increased to $1,900.00, and all but $500.00 was paid by Complainant to Respondent at the time the parties' agreement was concluded.

3. The construction of the block fence and the gates was completed approximately one week later which was on or about February 8, 1997, at which time Complainant paid Respondent the balance of the increased contractual cost price. It was uncontroverted that Respondent's submission of its bid, its entry into the contract and its performance of construction work, found herein to have constituted the engaging in the contracting business, all took place after the application for but prior to the issuance of Respondent's contracting license.

4. It is found and determined from the credible testimony at the hearing that the type of gates described by Complainant and communicated to Respondent at the time of amending the original proposal were to be "Wrought Iron Gates," constructed with vertical bars of wrought iron alternating with one or two slats of wood. The contract document, prepared by Respondent's owner, Mr. Finn, after discussions with Complainant, when reflecting the addition of gates, described these features as "iron frame/with wood slats." This description was intended by Mr. Finn to refer to gates having iron frames along the back perimeters of each of the all-wood slat gate sections. The gates which were actually installed were the Iron Frame Gates and not the Wrought Iron Gates.

5. There was no indication that Respondent had adequately explained to Complainant that the type of iron frame gate purportedly identified in his prepared writing differed from her communicated description of gates with alternating vertical materials. Nor was there any indication that Complainant possessed any special knowledge of construction terminology, details and pricing. Consequently, it became incumbent upon Respondent's owner to more clearly have set forth the exact type of gates that were to be provided and installed, and any ambiguity in the written agreement must be construed against Respondent as the author of the document. Respondent's private, uncommunicated or inadequately communicated intentions to provide and install the different type of gates

which were ultimately furnished is not controlling, and therefore an entitlement is found to have existed for Complainant to receive the type of wrought iron gates which she had orally specified and had expressly told Respondent she desired.

6. The evidence revealed that Complainant had subsequently questioned the difference in the type of gates she had observed being installed, and was given express assurances by representatives of Respondent that all gates would be sturdy, inducing a provisional acceptance by Complainant of the installed gates. However, the evidence further demonstrated that the gates were not sturdy, even to the extent of exhibiting premature warping and sagging, as well as the experiencing of one section being blown off by the wind and becoming irreparably damaged soon after installation. Consequently, such failures effectively negated any prior assurances and provided a basis for Complainant to rescind any conditional acceptance of gates that were different than those specified, effectively restoring Complainant's entitlement to receive the gates she had originally desired and described to Respondent.

7. Neither of the installed gates had provided for access into the rear yard from the front of the home, constituting a violation of applicable local building code provisions. Respondent should have at least made provision for a form of an accessible latch mechanism on the 3-foot gate which would have enabled the gate to be opened from the front side.

8. Respondent's deviations both from the contractual specifications as to the type of gates to be provided and from building codes relating to access from the front into the rear yard, as set forth in the previous Findings of Fact,must be rectified by Respondent entirely at Respondent's own expense. Such remedial action is determined to consist of the appropriate removal and replacement of all gate sections so as to provide and install "Wrought Iron Gates" containing alternating wrought iron and

wood slat vertical members and the making of provisions in at least one of the gates for access into the rear of the property from the gate's front side.

9. The evidence and testimony further revealed that that several caps on the tops of some of the block wall pilasters or pillars were unacceptably loose. Additionally, the hinges on the two sections of the 10-foot gate were inappropriately secured into the adjacent block fence and were incorrectly positioned, resulting in the improper installation of these gate sections which caused or significantly contributed to a visible sagging condition and the blowing off of one section. With respect to the smaller 3-foot gate, the wood materials at the top were prematurely warping or twisting due to the absence of adequate support. Such deficiencies reflect adversely upon Respondent's workmanship and must all be properly corrected as part of the gate replacement work.

10. Despite repeated and numerous attempts by Complainant to contact Respondent, no genuine efforts were undertaken to return telephone calls or to otherwise return to the premises to rectify reported problems with the installation. This failure is determined to constitute a wrongful act on the part of Respondent to the detriment of Complainant within the meaning and intent of one of the contracting law violations charged hereunder.

11. Following a jobsite visit, the Registrar's assigned Inspector issued a written directive seeking to prompt Respondent to accomplish corrections to the fence and gate construction. The Inspector had concluded that both gates should be replaced with gates having alternating wrought iron and wood vertical slats (Wrought Iron Gates). The directive also provided that all improper hinges were to be repositioned and more effectively secured so as to eliminate the sagging condition, that provision be made for opening at least one of the gates from the front of the residence into the rear yard and that all loose pilaster caps be repaired.

12. Respondent was shown not to have accomplished or even commenced any remedial measures within the reasonable time period set forth in the written directive and, moreover, has not attempted any corrective work in the five month time period which has elapsed while awaiting the instant hearing.

13. The long-term existence of uncorrected workmanship deficiencies, code and specification deviations and the non- compliance with the Inspector's directive, all relating to construction work by Respondent which should not have been bid or performed unless or until its license had been issued, may be considered as matters in aggravation when formulating an appropriate Order in this administrative action.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established violations by Respondent of the provisions of A.R.S.§32-1154A(2), (7), (23) and (3); namely, Rule R4-9-108.

2. The Registrar is also empowered to impose disciplinary penalties against the contracting license of Respondent pursuant to A.R.S.§32-1154A(20) based upon the subsequent discovery of certain facts which, if known at the time of issuance of the license, would have been grounds to deny same. Some of these facts, as demonstrated at the hearing, related to the submitting a bid and performing construction work, thereby engaging in the contracting business, within one year prior to applying for and securing its license, as expressly prohibited under A.R.S.§32- 1122(E). Additionally, other subsequently discovered facts demonstrated the existence of workmanship deficiencies as well as deviations from applicable specifications and local codes in the work performed by Respondent which statutorily tend to generate an adverse impact upon the good character requisite for licensure, as described in A.R.S.§32-1122(D).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B- license shall be revoked on the effective date of this Order (thirty- five [35] days after the date of mailing by the Registrar).

It is further recommended that if Respondent properly accomplishes appropriate and effective remedial work on the block wall pilaster caps and replaces all gates, including the correction of the workmanship and code defects, as set forth in Findings of Fact Nos. 8 and 9, on or before this Order's effective date, then the above-provided license revocation shall not take place but instead, Respondent’s Class B-03 license shall be placed on disciplinary probation for a period of seventy-five (75) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

It is further recommended, if the above-provided alternative penalty is applicable and in addition to such alternative penalty, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of this Order, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such extended 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.

Dated: November 3, 1997. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on ______________________

by: _____________________________ , To:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Jennifer Varela -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826