ALJDEC

97F-M1838-ROC · Registrar of Contractors · 1998-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 1998 APPEARANCES: John Bowers, Complainant, appeared in his own behalf Esteban Rodriguez, of Esteban’s Land Design, Inc., appeared on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT The parties entered into a contract for certain landscaping work to be done by the Respondent at the Complainant’s home in Gilbert, Arizona. The Respondent did the work in December, 1996. The Complainant determined a number of items were not satisfactorily done and requested the Respondent to correct them. The Respondent had sustained injuries in an accident and did not timely address the issues raised by the Complainant. Eventually the Respondent did some corrective work but all items were not properly corrected and the Complainant filed his complaint with the Registrar of Contractors (Registrar) on June 5, 1997. An inspection was done by Inspector Van Bagley (Bagley), who issued a Corrective Work Order (CWO) on August 8, 1997. The CWO required the Respondent repair the cracks in the decorative front walls, move sprinkler heads and repair cracks in sidewalk at the treewell in the front yard. The Respondent had his brother do corrective work. The sprinkler heads were moved and a portion of the decorative wall was replaced but the Respondent failed to paint the wall. The repaired portion of the wall was made of cement block with re-bar. Concrete debris and grout were used to fill in the cement block. The original portion of the wall does not have re-bar. The cracks in the walkway at the treewell had not been repaired. The Complainant contacted Bagley and informed him the corrective work had not been completed. The Citation and Complaint issued on November 21, 1997. The Respondent failed to timely answer the Complaint, and a Decision and Order (D&O), deeming the allegations admitted was entered on December 16, 1997. The D&O required the Respondent to rectify the items in the complaint and the CWO within 35 days or the Respondent’s license would be suspended. The Respondent did not become aware of the D&O until he attempted to renew his license in February, 1998, at which time he learned of the suspension. The Complainant was preparing to obtain estimates for submission to the Residential Contractors’ Recovery Fund (Fund). The Respondent requested a Compliance Inspection. This was done by Bagley on March 19 , 1998. Bagley determined the work which had been done on the wall and sprinklers was satisfactory. The walkway at the treewell still needed correction. The Complainant informed the Respondent that he would not be allowed to do any more corrective work. The Respondent offered to pay for the cost of a third party contractor to do the work but this was declined by the Complainant. Bagley performed a pre-hearing inspection on the day of the hearing and noted that the wall was cracking where the replaced section of the wall meets the original wall. The crack is approximately 3/16th of an inch wide and there is also approximately a 1/8th inch vertical deflection. A hairline crack was noted at the south decorative wall but Bagley did not consider it excessive. The walkway and treewell is still in the same condition with a hole from a form requiring patching, deflection at the treewell and cracking at another section of concrete removed from the treewell. CONCLUSIONS OF LAW 1.The Registrar’s Order required the Respondent to rectify the items in the CWO and complaint. The compliance inspection of March 19, 1998, indicated that the only item which required additional attention was the repair of some cracks in the concrete around the treewell and the replacement of the crack which showed vertical displacement. 2. The Respondent was not given the opportunity to do this corrective work because the Complainant wanted the cracked areas of the concrete replaced rather than repaired and did not want the Respondent to do the work on the vertical displacement. The Complainant also declined an offer from the Respondent to pay for a third party to make the necessary repairs because he wanted the matter to be addressed through the Registrar. The Complainant was frustrated with the Respondent’s original unresponsiveness and was preparing to obtain bids to file a claim with the Fund when the Respondent requested the instant hearing. 3. If the facts of the case were limited to the above, a recommendation that the Respondent had made reasonable attempts to comply with the Registrar’s Order would be forthcoming. The Complainant’s position precluded the Respondent’s attempts to address the sole issues remaining on the compliance inspection. However, it cannot go unnoticed that the replaced portion of the decorative wall is cracking and showing vertical deflection where it meets the original wall. The majority of the wall has a turn down footing and is part of the cement walkway. The vertical deflection indicates possible shifting of the soil. Although no specific standard was presented regarding acceptable limits of cracking or deflection (the wall is only 2 feet and less in height), the fact remains that the CWO required correction and the Registrar’s Order incorporated the CWO. The evidence shows that attempting to repair the wall crack by filling it with silicon is not likely to be successful. The Complainant unsuccessfully attempted this type of repair. According to Bagley, a hairline crack at the southern wall is within acceptable limits. 4. It is concluded that as of the compliance inspection in March, 1998, the Respondent had completed some of the work and was not allowed to complete work which remained to be done. Additionally, the Complainant declined an apparent good faith offer of payment to a third party to do the work. It is also concluded that some of the work which was satisfactory in March, 1998 has deteriorated and no longer meets the requirements of the Registrar’s Order. This requires correction. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-21 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished or caused to be accomplished by a qualified contractor, appropriate and effective remedial work on the cracked and deflected wall, the cracked and deflected areas of the walkway including around the treewell; It is further recommended that the Complainant make the premises reasonably available to the Respondent or such other qualified contractor, in order to do the corrective work required by the Order entered in this case; It is further recommended that in lieu of the above corrective work, the parties may enter into and execute a mutually agreed upon financial settlement prior to the effective date of the Order entered in this matter;

It is further recommended that if the Respondent accomplishes or causes the accomplishment of the above described work, or if the parties execute a financial settlement prior to the effective date of the Order in this case, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, July 9, 1998.

_______________________________ ALLEN REED Administrative Law Judge

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

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