ALJDEC

98F-0819-ROC · Registrar of Contractors · 1998-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 1998 APPEARANCES: James Hayes on his own behalf, Respondent did not appear at the hearing ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. Complainant and Respondent entered into a written contract for Respondent to install a rose colored block fence (the “fence”) at Complainant’s residence located at 7257 East Wilshire Drive, Scottsdale, Arizona 85257 (the “Home”). 2. Complainant paid Respondent the sum of $3,657.00 for the above- mentioned work. 3. On September 29, 1997, Complainant filed a complaint against Respondent alleging deficiencies in the Work Respondent performed at the Home. 4. Registrar of Contractors’ Inspector Richard Stuart conducted a jobsite inspection and issued a Corrective Work Order on October 31, 1997, requiring Respondent to perform certain remedial work within 15 calendar days of issuance of the Corrective Work Order. 5. Respondent failed to comply with the Corrective Work Order and, to date, has not made any repairs to the fence. 6. In February, 1998, Registrar of Contractors’ Inspector Cliff Frandsen performed an inspection of the fence and determined that the fence was not built in accordance with minimum workmanship standards in that the fence contains different color mortar, the fence contains different color blocks, gaps exist between blocks, the top of the fence is not level, columns are out of plumb, mortar lines are not level, blocks that were to interlock but did not do so, and the fence was not installed correctly. 7. During the hearing, Inspector Frandsen credibly testified that the fence was the worst fence he had ever seen; the fence is structurally unsound and the fence cannot be repaired and can only be fixed by having it tore down and rebuilt. 8. The evidence of record established that the gate to the fence is not functional due to the poor construction of the columns adjacent to the gate. 9. The evidence shows that Complainant dealt with Respondent’s president, Joe E. Rosell, concerning construction of the fence. Mr. Rosell became threatening and abusive during the above-mentioned inspection with Inspector Frandsen, which caused the Complainant to terminate the meeting. Respondent did not acknowledge to Complainant or Inspector Frandsen that there was any problem with the construction of the fence. 10. The evidence of record established that Respondent failed to construct the fence in accordance with minimum workmanship standards. 11. The fence was constructed by Respondent in such a manner as to damage Complainant’s landscaping and the placement of the fence deprives Complainant of some land ranging from six inches to one foot on three sides of Complainant’s property. 12. Respondent failed to present any evidence to refute or rebut the evidence presented by Complainant. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. §§ 32-1154 (A)(7),(23) and (3), namely. A.A.C. R4-9- 108. RECOMMENDED ORDER Based on the above, it is recommended, commencing on the effective date of the Order entered in this matter, that Respondent’s Class C-14 license be revoked unless the Registrar of Contractors receives written proof that Respondent has caused a properly licensed contractor, other than the Respondent, to tear down and rebuild the fence in an appropriate manner, as per the contract entered into between Complainant and Respondent. It is further recommended that if Respondent complies with the above, on or before the effective date of the Order entered in this matter, the above license revocation shall not take place. It is further recommended that as an alternative penalty, in the event that the above license revocation does not take place, pursuant to A.R.S. §32-1154(D), Respondent shall pay a civil penalty of $100.00 to the Registrar of Contractors within thirty days of the effective date of the Order entered in this matter. The failure of Respondent to pay the entire amount of the above-mentioned civil penalty on or before thirty days of the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s Class C-14 license, effective on such deadline date. No future licenses shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101 (A)(3), unless payment of any outstanding civil penalty is tendered to the Registrar of Contractors. Done this day, August 25, 1998.

_________________________________ LEWIS D. KOWAL Administrative Law Judge

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

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

By _______________________________ -----------------------

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