ALJDEC

99F-2811-ROC · Registrar of Contractors · 1999-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 1999 APPEARANCES: Complainant Alan Muller appeared on his own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is whether Respondent Gerard Construction is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent Gary Alan Gerard dba Gerard Construction (“Gerard”) is the holder of a Class B license (No. 113915) issued by the Registrar of Contractors (“ROC”). On April 6, 1999, Complainant Alan B. Muller filed a complaint against Gerard with the ROC. Among other things, Mr. Muller alleged poor construction and/or workmanship by Gerard at Mr. Muller’s residence located in New River, Arizona. ROC Inspector Phil Coscia investigated Mr. Muller’s complaint. Inspector Coscia conducted a jobsite inspection at the Muller residence on May 7, 1999. On May 14, 1999, Inspector Coscia issued a Corrective Work Order (“CWO”) to Gerard. The CWO instructed Gerard, in part, to repair or replace certain portions of Mr. Muller’s driveway which contained cracks and vertical displacement (heaving) in excess of minimum workmanship standards established by the ROC for concrete work. Following receipt of the CWO, Gerard repaired the defective sections of the driveway. However, by late July 1999, the cracking and heaving had resumed. By letter to Inspector Coscia dated July 27, 1999, Mr. Muller requested that his case be re-opened and that he be granted a hearing. On August 9, 1999, the ROC re-opened Mr. Muller’s case and by letter dated August 10, 1999, gave notice to Gerard that the case had been re-opened. On September 1, 1999, the ROC issued a Citation and Complaint against Gerard charging Gerard with violations of A.R.S. § 32-1154(A)(7) (wrongful act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action), and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). By letter dated September 7, 1999, Gerard filed an answer to the Citation and Complaint. By notice dated November 1, 1999, sent to both parties by certified mail, return receipt requested, this matter was set for hearing on December 7, 1999 at 1:30 p.m. at the Office of Administrative Hearings in Phoenix, Arizona. Gerard failed to appear at the hearing.[1] Inspector Coscia testified that he conducted a pre-hearing jobsite inspection at the Muller residence on December 6, 1999. Inspector Coscia testified that the corrective work performed by Gerard on Mr. Muller’s driveway fell below the minimum workmanship standards established by the ROC for concrete work. Among other things, Inspector Coscia testified to the presence of heaving and cracking in excess of the minimum limits established by the ROC. Mr. Muller offered into evidence 10 photographs of the driveway, all of which corroborated Inspector Coscia’s testimony. Mr. Muller also offered into evidence a November 30, 1999 letter from architect Michael Menn, in which Mr. Menn opined that the concrete cracking resulted from Gerard’s failure to have properly compacted the underlying substrate and from Gerard’s failure to have properly reinforced the concrete. CONCLUSIONS OF LAW In this administrative proceeding, Mr. Muller bears the burden to prove, by a preponderance of the evidence, the allegations of his complaint against Gerard. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence ' 5 (1960). The Administrative Law Judge finds that Mr. Muller sustained his burden to prove that Gerard failed to comply with minimum workmanship standards for concrete in the construction of, and subsequent corrective work performed on, Mr. Muller’s driveway. The Administrative Law Judge finds that in so doing, Gerard violated A.R.S. § 32-1154(A)(3) as charged by the ROC in its Citation and Complaint. The Administrative Law Judge further finds that Gerard violated A.R.S. § 32-1154(A)(23) as charged by the ROC by failing to perform appropriate corrective work. In so doing, Gerard also violated A.R.S. § 32- 1154(A)(7) as charged by the ROC by engaging in a wrongful act which substantially injured Mr. Muller. As set forth in the Citation and Complaint issued by the ROC, Gerard was advised that in the event of a finding of a violation against it, Gerard’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official ROC records regarding any prior final disciplinary orders against Gerard and said notice revealed that the instant complaint was the only complaint on the ROC’s current record regarding Gerard. Therefore, Gerard’s prior record is deemed to be excellent and is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. On the other hand, the Administrative Law Judge deems Gerard’s failure to appear at the hearing a demonstration of disregard for ROC procedures as well as Gerard’s license, and as such to be viewed as an aggravating circumstance. RECOMMENDED ORDER It is recommended, commencing on the effective date of the Order entered in this matter, that Class B license No. 113915, issued to Gary Alan Gerard dba Gerard Construction, be suspended until such time as the ROC receives written proof that Gerard has appropriately rectified the defective concrete work at the Muller residence.

Done this day, December 15, 1999.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The Administrative Law Judge delayed the start of the hearing for approximately fifteen (15) minutes so as to allow added time for Gerard’s appearance. Gerard not only failed to appear, he also failed to inform the Office of Administrative Hearings of any reason which would establish good cause for failing to appear.

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