ALJDEC

97F-2566-ROC-RHG · Registrar of Contractors · 1998-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 1998 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, William Simon. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. It is important to note the history of this matter in order to determine the issue to be presented and considered at the instant rehearing. A review of the entire record in this matter reveals the following salient facts: a. This matter came on for original hearing on October 9, 1997. At that time there had never been a jobsite inspection of any construction issues by the Registrar of Contractors and the matter was apparently treated by the Registrar as a money dispute between the parties. Complainant averred at the original hearing that it was not his intent to seek any discipline against Respondent’s license but merely to adjudicate and liquidate the money dispute. Based on an apparent good faith disagreement between the parties as to whether Complainant over-paid on the contract or whether Complainant still owed Respondent monies on the work performed by Respondent, Complainant agreed to dismiss the matter and the parties agreed to attempt to resolve the money dispute on their own mutual efforts. b. Based on the foregoing facts, an Order was entered by the Registrar dismissing the Citation and Complaint. c. Shortly after the above-described Order was entered, Complainant filed a petition for rehearing and Respondent filed opposition thereto. The Registrar issued an Order on January 8, 1998 denying the petition for rehearing. d. On January 18, 1998, Complainant requested that the Registrar reconsider the denial of his petition for rehearing indicating that he had one singular issue involving deviation from plans and specifications (A.R.S. §32-1154A 2 ) that he wished to pursue and further requested that a jobsite inspection be conducted by an inspector for the Registrar of Contractors. There was no request that the Registrar re-open the case in an attempt to resolve the money dispute between the parties. e. Based on the aforementioned January 18, 1998 letter, the Registrar of Contractors issued a further Order on January 27, 1998 re- opening the instant complaint and ultimately instructed one of its inspectors to conduct an inspection at Complainant’s residence. f. On March 4, 1998, the Registrar of Contractors issued a notice of compliance hearing which was later corrected to reflect, in the caption only, that it was a notice of rehearing. 2. Based on all of the foregoing and the content of the above- described January 18, 1998 letter from Complainant, it was determined that the only issue upon which Respondent had reasonable notice to be prepared to defend at this rehearing was the allegation of deviation from plans and specifications. Thus, based on basic principles of due process under the law and with due consideration of the confusing nature of the notices mailed out by the Registrar of Contractors, the instant rehearing was limited to only the issues set forth in Complainant’s letter of January 18, 1998 which caused the Registrar to re-open this case. Nothing in this ruling would serve to prevent Complainant from filing a new complaint with the Registrar of Contractors regarding any issues not litigated at this rehearing. 3. Complainant contends that certain changes in the as-built construction of the master bedroom closet and the closet in bedroom no. 2 were not built in accordance with the applicable plans and specifications. Evidence of record demonstrated that said areas are not built precisely in accordance with the applicable stamped plans filed with the local building authority. However, it is very important to note that Respondent was instructed, in writing, by Complainant to make numerous design changes, on the original construction plans, in an attempt to cut costs on the project. Notwithstanding many changes on the project, none were committed to written change orders. 4. Although Complainant contends that the changes in the as-built closets were due to poor supervision by Respondent, the weight of the evidence of record was sufficient to support a finding that the changes in the above-described closets were due to framing constraints (changes) imposed by Complainant regarding insertion of a desk in bedroom no. 2 and Complainant’s direction for the placement of the central-vac system. Complainant failed to sustain the requisite burden of proof on this issue necessary to establish that these changes constituted a material and prejudicial disregard of the applicable plans for construction of his home or a failure by Respondent to properly superintend the construction. 5. Complainant contends that the height of the retaining wall immediately adjacent to the swimming pool was not constructed to the required height and that he incurred specified costs to cut down said wall. Notwithstanding Complainant’s claim, the weight of the evidence of record was sufficient to support a finding that the wall was constructed in substantial compliance to the height set forth in the applicable plans and merely due to Complainant’s aesthetic based objection to the as-built wall, Complainant cut down approximately two (2) feet from the top of the wall. 6. Although Complainant claims that the wall had to be cut down to meet local building code and neighborhood building design maximum height requirements for walls, it was adequately shown that the height issue could have been resolved by installation of adequate backfill to cover a number of the lower courses of said block wall. It is important to note, in this regard, that Respondent was not given an opportunity to complete the landscaping work on the project due to an apparent breakdown in the working relationship between the parties near the conclusion of the project. The facts presented herein fail to support any finding that Respondent should have been responsible for any costs incurred by Complainant’s election to cut down the wall in question. 7. Two other specified block walls were shown to be in excess of the aforementioned local building height limitations. The walls in question constitute a change from the applicable plans which were originally designed to break-up the look of the wall by using part block and part stucco so as to comply with the local building authority requirements for wall heights wherein the same building material was utilized from top to bottom on the wall. 8. Notwithstanding the height of the above-described walls, Complainant has received his permanent certificate of occupancy and is not currently facing any complaints from the local building authorities. Nevertheless, he claims a loss of a specified bond necessary to allow the walls to remain as-built. 9. The as-built construction of the above-described walls (without the stucco application on the top portion of the wall) was shown to be due to changes requested by Complainant and that Respondent originally intended to deal with the height issue in this area by placing backfill and granite over the bottom few courses of the wall. Due to the fact that Complainant terminated Respondent’s work on the landscape portion of the project, Respondent was prevented from completing the intended method of alleviating any problems regarding the height of said walls. Complainant failed to sustain the requisite burden of proof on this issue necessary to establish a contracting law violation by Respondent. 10. Pursuant to the aforementioned letter from Complainant, dated January 18, 1998 and the Registrar’s Order re-opening the matter, a jobsite inspection by the appointed inspector for the Registrar of Contractors was held. The Registrar’s inspector was unable to discern any contracting law violations from said inspection.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed. Done this day, May 6, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of May, 1998, to:

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

By _______________________________

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