ALJDEC

99F-3101-ROC · Registrar of Contractors · 1999-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 1999

APPEARANCES: Complainant appeared through its general manager, Charles Brown and Respondent appeared through its president and qualifying party, Ronald Myers. 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. Pursuant to written contract, Complainant retained Respondent for the purpose of installing a wrought iron security fence and gates around its apartment complex. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below.

2. Due to Complainant’s dissatisfaction with the work performed and materials provided by Respondent, Complainant filed the instant complaint with the Registrar of Contractors. The Registrar assigned one of his inspectors to investigate the complaint.

3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Respondent made a concerted effort to comply with the terms and conditions of said Agency directive. The assigned inspector appeared at the instant hearing and offered his testimony regarding his findings at the original jobsite inspection and the pre-hearing inspection which had been conducted the day prior to the instant hearing.

4. Complainant contends that the expanded metal (metal mesh) installed to prevent someone from reaching in between the fence pickets and opening the gates was not wide enough to be effective. Nevertheless, the evidence of record was sufficient to demonstrate that the applicable contract was silent regarding the amount of expanded metal mesh to be installed around the gate handle and that the18 inches of expanded metal installed herein, on either side of the gate handle, is the standard amount utilized in the industry.

5. Notwithstanding the foregoing finding regarding the appropriateness of the expanded metal installation on this project, it was adequately shown that the parties had agreed, for extra security purposes, to have specified metal boxes installed around the gate handle mechanisms, in order to assure that the gate handle could not be opened from the exterior side. This became an “extra” to the contract and Complainant paid the sum of approximately $1,528.00 for these boxes to be installed on the several gates in the security fence system.

6. Complainant now objects to the boxes as being an unnecessary expenditure and a hazard to small children. Complainant claims entitlement to a larger section of expanded metal and removal of the boxes.

7. The assigned Agency inspector viewed the boxes in question and the applicable contract. He testified that the contract did not specify the dimensions for the expanded metal and that in his opinion the boxes, which Complainant had agreed to have installed, were an effective and appropriate means to protect the inside gate handle.

8. It is determined and held that Complainant failed to sustain the requisite burden of proof necessary to establish that Respondent failed to properly install the expanded metal or that Respondent deviated from the contract terms regarding said expanded metal installation. Moreover, the instant record fails to justify any finding that Respondent should be required to remove the protective gate handle boxes.

9. It was undisputed that several of the “can’t slam” closing devices installed by Respondent on specified gates broke-off the areas of the fence structure upon which they were attached. Complainant contends that Respondent merely welded the closing devices onto the fence and that they should have been bolted onto the structure. The assigned Registrar of Contractors’ inspector testified that welding these closing devices to the fence is the appropriate method to attach them to the fence structure.

10. Respondent contends that the closing devices and gates were constructed to withstand 60 to 70 mile per hour winds and the failure claimed herein could only be due to vandalism or abuse. It is important to note that the Agency inspector testified that he had driven by the property on at least one occasion subsequent to the original jobsite inspection and observed a child swinging from a gate.

11. Complainant has had the gate closing devices reinstalled by another contractor. The instant record was inadequate to support any finding that the closers installed by Respondent were defective, that there was any workmanship deficiency in the manner in which Respondent attached the closing devices to the fence structure, or that the failure of the closing devices was directly attributable to Respondent’s workmanship.

12. Subsequent to issuance of the above-described Agency directive, Respondent installed a specified postal lock-box on one of the gates. Apparently the post office would not accept the type of box installed and therefore, Respondent was required to obtain another box and ultimately installed the new box near the original box, thereby leaving two lock boxes on the gate. Complainant wants the original improper box removed.

It is not indicative of good and proper workmanship to leave the improper box in place. Respondent’s failure to remove the first postal lock box is determined not only to constitute poor workmanship but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. It is important to note that at the pre-hearing jobsite inspection, Respondent agreed to remove the first postal lock box. In this regard, it will be required to repair any damage to the fence due to the installation and removal of said lock box.

14. Complainant objects to the fact that Respondent attached the fence structure to the walls of various buildings in the complex, claiming that said method of attachment will fail over time and that Respondent should have installed the fence by using concrete footings to set the fence sections in place. A careful review of the written contract in question reveals that it makes no provision for concrete footings. Moreover, the assigned inspector observed the method by which the fence structure was attached to the walls and testified that the method of attachment was indicative of an acceptable installation.

15. It is determined and held that Complainant failed to sustain the requisite burden of proof necessary to establish any entitlement to concrete footings in the fence installation or that the attachment of the fence structure to the building walls was not performed in a proper workmanlike manner.

16. A review of the Corrective Work Order issued by the assigned Agency inspector in relation to the evidence and testimony presented at the instant hearing militates against any finding that Respondent failed to comply with the terms and conditions of said Agency directive.

17. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary action on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. The evidence of record support a limited finding that Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4- 9-108.

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 L-24 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the removal of the unacceptable postal lock-box. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, November 15, 1999

______________________________________ Mark A. Silver 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 ___________________________

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