ALJDEC

99F-0618-ROC · Registrar of Contractors · 1999-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 1999. APPEARANCES: Complainant appeared personally. Respondent appeared through its owner and qualifying party, Al Basham. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. On or about June 26, 1998, the parties entered into a written agreement for work to be performed by Respondent at Complainant’s Wickenburg residence. 2. Respondent agreed to construct a 131’ X 6’ retaining wall, a 113’ X 5’ block wall and a 61’ X 4’ block wall with ornamental iron. Respondent’s bid included paint and stucco. Respondent was also to install gates for access to Complainant’s backyard. 3. The parties’ written agreement stated that excavation work would be an additional charge. 4. Complainant tendered a check in the amount of $3,486.09, which represented one-half of the total contract price, to Respondent at the time of signing the contract. 5. There are no written change orders. Therefore, Respondent is found to be responsible for the performance of its work as specified in the written agreement. 6. Although the contract specified a starting date of July 1, 1998, Respondent actually commenced operations on July 8, 1998. 7. On August 17, 1998, Complainant filed a complaint with the Registrar of Contractors alleging that Respondent had violated provisions of the State’s contracting laws on the subject project. 8. On October 22, 1998, the Registrar’s assigned inspector performed a jobsite inspection to view Respondent’s workmanship. No one appeared at the inspection representing the Respondent. That inspection resulted in the issuance of a Corrective Work Order by the Registrar directing Respondent to perform remedial work to the above grade footing for the retaining wall, to complete the back yard fence to a height of 5’ as specified in the contract, to straighten the crooked retaining wall, to bring the side wall fence with the ornamental iron to the specified length of 61’, and to remove all exposed rebar. 9. Respondent is found to have failed to timely comply with the Registrar’s written directive. 10. It is also determined that Respondent did not have good cause for its failure to comply with the Registrar’s written directive. 11. Complainant caused the exposed and uncapped rebar to be removed. 12. The footing for the retaining wall along the driveway side of Complainant’s house is above grade. Respondent is deemed responsible for correcting that deficiency to minimum workmanship standards. 13. The contract specified that the back yard wall be 5’ high. It is 4’4’’ in height. Respondent is found to be responsible for bringing the wall up to the specified height. 14. The side yard retaining wall at the driveway is very crooked. Portions of the block fence are off Complainant’s lot line. Respondent’s Class C- license does not permit it to construct retaining walls or to subcontract such work to other contractors. Respondent is deemed responsible for causing a properly licensed contractor to remove the existing retaining wall and reconstruct it per specifications at Respondent’s sole cost and expense. 15. The contract specifies that the side fence wall with the ornamental wrought iron be 61’ in length. It is approximately 47’. Respondent is responsible for undertaking remedial repairs to bring the wall to the specified length. 16. There is insufficient evidence to support the extra charges submitted to Complainant by Respondent. 17. The above-described remedial repairs are Respondent’s financial responsibility. 18. Respondent is also found to be responsible for repairing any damage to Complainant’s property caused by the remedial repairs to its deficient workmanship. 19. Respondent’s failure to perform the above described work to minimum workmanship standards, its charging for work that was not supported by a signed change order and its failure to comply with the Registrar’s written directive are deemed wrongful acts which have substantially injured Complainant. 20. Respondent’s out of scope contracting for the construction of the retaining wall is also deemed a wrongful act which has substantially injured Complainant. 21. A review of the official records of the Registrar of Contractors supports a finding that Respondent’s clean disciplinary history should be considered as a matter in mitigating any disciplinary action that may be imposed in this matter. 22. Respondent’s out of scope contracting for the construction of the retaining wall, which does not meet minimum workmanship standards, is a matter in aggravation that should be considered when determining an appropriate disposition of this matter.

CONCLUSION OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. §32-1154 (A) (7), (23) and (3); namely Rule R4-9-108. 2. The Registrar has the statutory authority to impose a civil penalty of not to exceed $500.00 on a contractor for each violation of A.R.S. §32- 1154 (A)(23). A.R.S. §32-1154 (D). The evidence of record supports the imposition of a civil penalty upon Respondent by the Registrar of Contractors.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class C-14 be suspended until the Registrar of Contractors receives written proof that the exposed footing, the height of the back fence and the length side fence wall with the ornamental iron have been appropriately rectified by Respondent per the original specifications, and that Respondent has caused a properly licensed contractor to remove the existing retaining block wall and to reconstruct it pursuant to contractual specifications. It is further recommended that if Respondent properly accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-14 license shall be placed on probation for a period of 120 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order entered in this matter is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $250.00 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 the Order entered in this matter shall result in the automatic revocation of Respondent’s contractors license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101, unless payment of any outstanding prior civil penalty is tendered.

Done this day, April 28, 1999.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826