ALJDEC

99F-M0209-ROC · Registrar of Contractors · 1999-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On March 16, 1999, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Brad A. Hunter appeared on his own behalf. David L. Derka appeared on his own behalf. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Brad A. Hunter (the “Complainant”) is the owner of a home located at 5135 E. Lost Dutchman, Apache Junction, Arizona (the “Home”).

2. David Derka (the “Respondent”) is the owner and qualifying party of Derka’s Stucco. The Respondent is licensed as a plastering contractor.

3. In February of 1998, the parties entered into a written contract (the “Contract”) for the Respondent to stucco and finish the exterior walls of the Home (the “Project”). The Complainant testified that he requested a color coat finish on the walls.

4. The Respondent testified that he did not want to do a color coat finish on the Home’s walls. The Respondent testified that he tried to talk the Complainant out of having a color coat finish. However, the Respondent ultimately agreed to apply the color coat finish.

5. The Complainant testified that the weather initially hindered the progress of the Project. The Complainant testified that the Respondent ultimately completed the stucco and finish job on June 16, 1998. The Complainant testified that he paid the Respondent on June 17, 1998. However, the Complainant testified that the Home’s north wall had to be redone. The Complainant testified that the Respondent delivered the materials to the Home to redo the north wall. However, the Complainant testified that the Respondent never returned to redo the north wall.

6. The Respondent testified that he “went beyond the call of duty” to satisfy the Complainant. The Respondent testified that the Complainant was constantly delaying the Project. The Respondent further testified that the Complainant kept changing his mind about the installation and positioning of doors, windows and fireplaces. The Respondent testified that the Complainant’s indecisiveness greatly delayed the completion of the Project. The Respondent testified that the Complainant was happy with his work during a final inspection of the Home.

7. The Respondent testified that he did agree to redo the north wall of the Home. However, the Respondent testified that the Complainant promised to pay him more money (above the contract price) for this work. The Complainant testified that he never made such a promise. The Complainant testified that it would be ridiculous for him to pay more money to complete the north wall when this wall was included in the original Contract.

8. On August 6, 1998, the Complainant filed a Complaint with the Registrar of Contractors (the ”ROC”) alleging several items that required corrective work. On or about October 2, 1998, ROC Inspector James Walsh inspected the Home. The Respondent was not present at the inspection. However, Bill Fitzgerald, the Respondent’s foreman was present.

9. On October 5, 1998, ROC Inspector Walsh issued a Corrective Work Order ("CWO") to the Respondent requiring the following corrective action:

1. Contractor to remove the stucco between the ledger and flashing at rear wall. 2. Re-stucco the north wall. 3. Redo the area at headers inbeds on east wall. 4. Correct any and all chips in stucco surface. 5. Clean splashed stucco from wood beams.

See CWO, dated October 5, 1998.

10. The Respondent refused to perform the corrective work. The Respondent refused to even call the Complainant. The Respondent testified that he did not call the Complainant because the Complainant had been so unreasonable during previous encounters. The Respondent further testified that he never agreed to redo the Home’s north wall without the extra compensation. However, ROC Inspector Walsh testified that Bill Fitzgerald, the Respondent’s foreman, did agree to redo the Home’s north wall during the inspection.

11. The Respondent implied that the Complainant attempted to perform corrective work on the Home’s walls that made the walls look substandard. However, the Complainant denied this allegation. Furthermore, Inspector Walsh testified that Bill Fitzgerald, the Respondent’s foreman, said nothing about this allegation at the October 2, 1998 inspection.

12. The undersigned Administrative Law Judge has reviewed the Complainant’s pictures of the Home’s east and north walls. See Complainant’s Exhibits 1-4. The undersigned Administrative Law Judge finds that the Respondent’s stucco and finish job was not performed in a professional and workmanlike manner. The undersigned Administrative Law Judge further finds that the Respondent’s substandard work (and failure to correct the substandard work) are wrongful acts that have substantially injured the Complainant. The undersigned Administrative Law Judge further finds that the Respondent has failed to take the appropriate corrective action within a reasonable time after receiving the CWO. The Respondent has done nothing to correct the problems at the Home. CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #12.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #12.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #12.

5. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class C-36 license pursuant to A.R.S. §32-1154. The undersigned Administrative Law Judge further finds that grounds exist to impose a civil penalty against the Respondent pursuant to A.R.S. §32-1154(D).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class C-36 license be suspended until the Registrar receives proof that the Respondent has hired and paid for a licensed contractor to perform the following:

1. Remove the stucco between the ledger and flashing at rear wall. 2. Re-stucco the north wall. 3. Redo the area at headers inbeds on east wall. 4. Correct any and all chips in stucco surface. 5. Clean splashed stucco from wood beams.

It is further recommended that if the Respondent completes the aforesaid corrective action in a proper, workmanlike manner on or before this Order’s effective date, or if the Respondent is unable to comply with the corrective action because of the Complainant’s unwillingness to grant Respondent’s representatives reasonable and timely access to the Home, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number M99-0209 shall be closed. The undersigned Administrative Law Judge further recommends that the Respondent pay a $200.00 civil penalty to the ROC pursuant to A.R.S. §32- 1154(D). If the Respondent fails to pay the civil penalty on or before this Order’s effective date, then the Registrar shall automatically suspend the Respondent’s license on that date. This penalty shall be due even if the Respondent properly performs the aforementioned corrective work.

Done this day, March 17, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Michael P. Goldwater Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________

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