ALJDEC

99F-M1068-ROC · Registrar of Contractors · 1999-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 1999 APPEARANCES: Complainant, Harvey Jordon was present, represented by attorney Rodney Matheson. A-1 Portable Welding, Inc., Respondent, was represented by attorney Anthony Giammarco. Present on behalf of Respondent was President Robert South and Richard Hubbard, an employee of A-1 Portable Welding Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Decision to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT 1. Complainant is in the business of transporting buildings. In July of 1998, Complainant contacted Respondent for the purpose of having Respondent weld two steel “I” beams together at Complainant’s business site. Respondent was aware of the nature of Complainant’s business and therefore knew that the purpose of welding the two beams together was to transport buildings.

2. In July of 1998, Respondent sent one of his employees, Archie Goutney, to perform the welding service. Mr. Goutney worked for two hours fishplating and stitch welding the two beams together (“Welded Beam”). Mr. Goutney was not a certified welder at the time he performed the welding for Complainant.

3. Complainant successfully moved a structure, referred to in testimony as a “workshop”, after Respondent welded the two “I” beams together. Complainant also successfully moved a second structure after Respondent’s initial welding job.

4. In August or September of 1998, a third, heavier structure, the Farnsworth office building, was loaded onto two beams. One of the beams was Welded Beam. The second beam had not been welded by Respondent. The Welded Beam broke under the weight of the structure. Complainant called Respondent to repair the beam. Mr. Hubbard performed the repair work on the broken beam within twenty-four hours of being notified by Complainant of the break. Respondent did not inspect the second beam. Mr. Hubbard testified that he suggested to Complainant that the second beam should also be welded for precautionary purposes. However, Mr. Hubbard testified that Complainant refused to pull the second beam out from underneath the structure. Complainant denied that Mr. Hubbard suggested welding the second beam.

5. During the course of transporting the Farnsworth office building, the second beam broke and the Welded Beam twisted underneath the weight of the office building. This resulted in the office building collapsing and breaking.

6. Complainant contacted Respondent to inform him of the break of the second beam and the resulting damage. Mr. Hubbard returned to repair the second beam. Mr. Hubbard performed repair work for approximately three to four hours.

7. At the hearing, both Mr. South and Mr. Hubbard testified that the welding work performed on the Welded Beam did not comply with the Structural Welding Code, which sets forth the industry standards. Mr. South and Mr. Hubbard agreed that the work performed by Respondent fell below industry standards. Mr. South testified that the welding was not properly done. The method of welding used was called fishplating and stitch welding. Mr. South testified that the proper way to have welded the beams would have been to cut the beams square, to have beveled the beams and then put the beams together. Mr. South testified that the beams also should have been tested.

8. Respondent’s defense to the poor workmanship was that Complainant wanted the work performed as inexpensively as possible. However, Mr. South testified that it would have only taken a day to perform the work properly. The work that was improperly performed totaled approximately five to six hours. Mr. South further testified that he never informed Complainant how long it would have taken to properly perform the work. Therefore, had Respondent taken the time to perform the work properly, he would have only had to charge Complainant for an additional two hours of labor.

9. Mr. South testified that the work was done improperly because Complainant did not request that it be done properly. The undersigned Administrative Law Judge finds that Respondent should have either: 1) refused to perform in a way which would have resulted in substandard work, or 2) have warned Complainant of the potential risk involved in not complying with industry standards and either have convinced Complainant to have the welding done properly, or have had Complainant sign a disclaimer. Complainant denied ever telling Respondent how to do his job. The undersigned Administrative Law Judge finds that it is not Complainant’s responsibility to request how Respondent’s services should be rendered. Complainant reasonably relied upon Respondent’s expertise in the field of welding. It was Respondent’s duty to comply with industry standards.

10. The undersigned Administrative Law Judge finds that Respondent did not comply with industry standards when performing welding services on the Welded Beam for Complainant. Respondent failed to perform in a professional and workmanlike manner as set forth in the testimony of both Mr. South and Mr. Hubbard. As a licensed contractor, Respondent has a duty to comply with industry standards. Respondent committed a wrongful act by intentionally performing substandard work. Respondent’s wrongful act of failing to comply with industry standards resulted in significant financial injury to Complainant. According to the documents in the case file, of which administrative notice was taken without objection, Complainant sustained a loss of potential projects, a loss of productive time, the loss of the steel beams, and the cost of labor for himself and three employees for approximately six weeks.

11. 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, the Respondent’s prior disciplinary record may be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, notice was taken of the official licensing records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent. Said notice revealed that the instant Complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record 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 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 Respondent has violated A.R.S. ( 32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #2 and #7 through #10.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. ( 32-1154(A)(7) as set forth in Findings of Fact #2, #4 and #7 through #10.

4. The undersigned Administrative Law Judge concludes that grounds exist to place Respondent’s Class B-02 license on probation in light of Respondent’s prior record. RECOMMENDED DECISION In view of the foregoing, it is recommended that the Class B-02 license of Respondent be placed on probation for a period of thirty (30) days commencing on the effective date of the Registrar’s Order. It is further recommended that Respondent be formally admonished to exercise greater diligence in the monitoring and the actual performing of its future undertakings with respect to performing welding services in a professional and workmanlike manner, in accordance with the Structural Welding Code. Done this day, November 2, 1999.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of November, 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