ALJDEC

99F-L0177-ROC · Registrar of Contractors · 2000-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|LINDA HAMILTON, |§| | | |§|CASE NO.: L99-0177 | |Complainant, |§| | | |§|DOCKET NO.: 99F-L0177-ROC | |-v- |§| | | |§| | |License No. 110667, Class C-31 of|§|RECOMMENDED | |MICHAEL ALAN GILBERTSON, dba |§|DECISION AND ORDER | |MIKE’S MASONRY (INDIV), |§| | | |§| | |Respondent. |§| | | |§| |

HEARING: Thursday, April 13th, 2000, at 8:45 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear or be represented. ADMINISTRATIVE LAW JUDGE: Grant Winston.

This matter came on for hearing on Thursday, April 13th, 2000. Testimony was heard and other evidence admitted, and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent was during all times material to the contractual relationship between these parties a contractor licensed by and doing business in the State of Arizona. He, Michael Alan Gilbertson, held Class C-31 License number 110667. However, as the computerized license records of the Registrar of Contractor’s Office and the evidence of this hearing prove, that license was revoked by the Registrar on February 24th, 2000, in connection with case number L99-0161. Previous thereto, the license was suspended on November 4th, 1999, and the suspension lifted on December 16th, 1999, in connection with case number L99-0080. 2. The Complainant in this case, Ms. Linda Hamilton, is the owner of her residence in Lake Havasu City, Arizona. She verbally contracted with the Respondent in July of 1998, for the Respondent to construct a masonry retaining wall and covered gazebo area around her swimming pool at her residence. 3. Respondent was given blueprints for the project. Respondent obtained permits from the local building authorities for the construction of the wall, but failed to obtain the necessary permits for the gazebo. 4. Respondent was also contracted by the Complainant to put in the electrical wiring in the walls and to run the lights on the walls. The evidence shows that the Respondent failed to electrically wire the wall within minimum workmanship standards, and failed to follow the blueprints. The lights on the outside walls were inoperative. 5. Respondent was unresponsive to the Complainant’s entreaties to correct and complete the work. She filed the instant complaint with the Registrar on May 3rd, 1999. She filed an addendum to the complaint on November 4, 1999, which was made a part of the Citation and Complaint issued September 22nd, 1999, by order of the Registrar’s office dated November 18th, 1999. 6. Before the administrative hearing was held, Complainant contracted with a third party electrical contractor and paid them $224.83 to correct the electrical work of the Respondent. 7. Mr. Barry Billings, Registrar of Contractor’s Inspector, was assigned to this case. He conducted a job-site inspection on May 20th, 1999, and issued a Corrective Work Order on May 20th, 1999. The CWO orders the Respondent to: “to take whatever action is necessary to obtain permit or written exemption for permit requirement, from local building officials, for retaining/fence wall built at right side of home and for gazebo walls. Contractor to provide as-built drawings of columns at gazebo detailing the size and placement of all reinforcement. Size of footings, etc. Contractor to provide any necessary supporting documentation that indicates columns are constructed as shown in as- built, as required by local building officials.” 8. Respondent failed to take any corrective action in obedience to the CWO. Registrar of Contractor’s Inspector Mr. Cliff Corlett, succeeded Mr. Billings in the assignment of this case. He testified at the hearing. He conducted a pre-hearing inspection on April 3rd, 2000, and discovered as of that date no work had been done by the Respondent. 9. Complainant wishes at this time only to have the Respondent compelled to obtain the necessary permits to complete the gazebo, and obtain any necessary documentation to obtain those permits. That much is essentially what the Respondent was ordered to do in the CWO. Unfortunately, the Respondent’s license is now revoked. It may be that the Complainant would be eligible for recovery under the recovery fund statutes. 10. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. The Respondent herein is cited in the instant Citation and Complaint with possible violations of A..R.S. §32-1154.A.2., 7., 23., and 3., namely A.A.C. R4-9-108 (Workmanship Standards). 3. Respondent did violate A.R.S. §32-1154.A.2. That subsection prohibits a licensed contractor from departure or disregard of plans and specifications in any material respect which is prejudicial to another without the owner’s consent. In this case Respondent did depart from the blueprints and the plans agreed to by the parties in their contract. In so doing he highly prejudiced the Complainant who is now unable to complete the project as planned, and who was forced to hire a third party contractor to redo the electrical work as called for in the plans and contract. 4. A.R.S. §32-1154.A.23 prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractor laws without valid justification within a reasonable period of time after having received a written directive from the Registrar. The CWO in this case is the written directive, and it ordered the Respondent to comply with the contractor laws requiring the project to be completed according to the plans, by taking the steps necessary to see that the local building authorities would permit the final stages of the project. Respondent has failed to obey the CWO and, in his failure to appear at the hearing, produced no evidence of reasonable justification for the failure. 5. A.R.S. §32-1154.A.3, prohibits a contractor from violating any administrative rule adopted by the Registrar, in this case the rule cited is A.A.C. R4-9-108, Workmanship Standards. That rule requires the contractor’s work to be performed in a professional and workmanlike manner, and in accordance with all applicable building codes. Respondent’s work was unprofessional, requiring the Complainant to contract with a third party to redo a portion of the work. It was further unprofessional work to fail to obtain the necessary permits. It was further unprofessional for the Respondent to leave the job uncompleted according to the contract. 6. Other than the above violations, there is no additional independent violation of A.R.S. §32-1154.A.7., which prohibits wrongful or fraudulent conduct on the part of the contractor which causes substantial injury to another person. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class C-31 License Number, already revoked, also be revoked for the violations in this case. Dated this 24th day of April, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of April, 2000, to:

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

Transmitted by: -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488