ALJDEC

99F-3227-ROC · Registrar of Contractors · 1999-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 1999 APPEARANCES: Complainant : Roberta Martinez appeared at the hearing pro se. Respondent : Nino Abate, Esq., with the Law Firm of William A. Miller, Phoenix, Arizona; Joe Rosell, President, Hurricane Fence Company; Bill Jenkins, Salesman with Hurricane Fence Co. Registrar of Contractors: Inspector Mel Purchase. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

1. Respondent is in the business of constructing cement block fences doing business in the state of Arizona as Hurricane Fence Company, holding a Class C-14 license (Masonry Fencing) issued by the Registrar of Contractors. 2. Complainant and Respondent entered into a written contract on May 14, 1999 whereby the Respondent contractor agreed to furnish material and perform services necessary to construct a concrete block fence upon property situated at 2231 N. 14th Street, Phoenix, Arizona. In consideration for the work performed and materials provided, Complainant paid down the sum of $2,000.00, leaving a balance of $2,155.00.[1]

3. Complainant filed a complaint with the Registrar of Contractors which resulted in the Registrar’s issuance of a Corrective Order on June 14, 1999, subsequent an on-site inspection by an assigned Inspector for the Registrar of Contractors, directing the contractor to 1) not charge the homeowner for the cost of rebar and to drop its civil suit; 2) ensure that the footing satisfied minimum standards that the company lay the block fence straight and level per the jobsite agreement; 4) complete performance pursuant to the agreement (there was no directive 3) issued).

4. On July 8, 1999, the homeowner amended her complaint with the Registrar of Contractors concerning the contractor’s workmanship. The parties stipulated at the hearing that the only issue which remains is #4 of the Corrective Order. The only items listed in Complainant ‘s amended complaint still at issue, subsumed under the general rubric found in Corrective Order directive #4, are (a) the column on the south side of the home not having been rebuilt to specification, a mixture of A-Block and H- Block (Amended Complaint #1); (b) chips in the block on the house structure where the fence adjoins the south side (Amended Complaint #2); and (c) cement spillage on the north side (Amended Complaint #6).

5. A pre-hearing job site inspection was conducted by Registrar of Contractors Inspector Mel Purchase on November 3, 1999. At the hearing, the assigned Inspector gave his opinion that (a) he does not believe that it is proper to utilize H-Block at the end of a column; (b) he had no opinion as to the chips in the block on the house; and (c) no Uniform Building Code violation can be identified concerning the cement spillage in the area between the walk and the patio of which Ms. Martinez complains, although he feels that the area was left in less than workmanlike condition.

6. Respondent’s President, Mr. Rosell, testified that H-Block was mixed in with A-Block on the rebuilt column at issue because his laborers had run out of A-Block at the jobsite.

7. The weight and sufficiency of the evidence establishes that the fence as constructed is deficient in workmanship with the column on the south side constructed of a mixture of A-Block and H-Block. All other enumerated items of the complaint were found either to have been corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW

1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3), (7) and (23); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) and (23) as charged in the Citation and Complaint. Respondent failed to reconstruct a cement block column on the south side of the property in accordance with its performance in the initial construction by substituting H-Block for the A-Block it used originally, which in the least is aesthetically displeasing, and as an excuse for which, mere unavailability at the jobsite, is unacceptable.

4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person.

5. Respondent’s failure to effect a repair of the deficiency of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER

IT IS RECOMMENDED that Respondent’s Class C-14 license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes appropriate and effective remedial work on the deficiency described in Finding of Fact No. 7 herein, on or before the effective date of the Order, the suspension should not be put into effect and the file closed.

Set forth this 5th day of November 1999.

______________________________________ Gary B. Strickland 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] Shortly after the Respondent commenced installation, Complainant stopped payment on the check which she had written as down payment. Thereafter, Respondent filed suit in the West Phoenix Justice Court seeking $2,000.00 plus costs. The matter was scheduled to be heard on August 27, 1999. Hurricane Fence failed to appear to prosecute its claim, which default in appearance resulted in a small claims award of #2,000.00 plus $78.00 in costs on Ms. Martinez’s counterclaim. The award can have no res judicata effect on these proceedings for the reason that there was no ruling rendered on the merits of the case. Ms. Martinez has since made a $2,000.00 payment on the job, leaving a balance owed in the amount of $2,155.00.

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