ALJDEC

99F-M1392-ROC · Registrar of Contractors · 1999-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 1999 at 9:00 a.m. APPEARANCES: Complainant John Coleman, Sr.[1] appeared on his own behalf; Respondent appeared through its attorney, Michael E. St. George, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT The Registrar of Contractors issued License No. 128200, Class C-21 to Respondent, a corporation, on October 15, 1997. Complainant John Coleman, Sr. lives with his wife Gertrude in a residence owned by their daughter Louise Coleman, who lives elsewhere. On April 13, 1999, Respondent contracted with Complainant Mr. Coleman to perform certain landscaping work at the residence, at a cost of $5,342.45. Respondent subsequently performed the work and Complainant paid the full contract price. On May 3, 1999, Complainant and his wife made a complaint to the Registrar in their daughter’s name, alleging that a drip line that Respondent had installed in the back yard was leaking and causing flooding, that the sprinklers were spraying water all over the walls and sidewalk, that the sidewalk and patio had cracked, and that Respondent’s president and qualifying party Richard Hogan would not return telephone calls. The complaint was assigned to the Registrar’s Inspector James T. Walsh to investigate. On June 28, 1999, Inspector Walsh performed a jobsite inspection and, as a result of his inspection, on June 29, 1999 on behalf of the Registrar directed Respondent to perform the following work within fifteen days: 7. CONTRACTOR TO CORRECT THE TWO SECTIONS OF SIDEWALK WITH CRACKS.

8. CHECK SPRINKLER LINE ADJACENT TO STEM WALL AT GARAGE.

9. INSTALL ONE MISSING DRIP LINE.

Respondent’s workmen appeared at the jobsite on July 14, 1999 to perform the corrective work. Because Respondent’s workmen left early on that date and the subsequent next two days due to rain, Respondent’s workmen did not complete the corrective work until July 16, 1999. On July 23, 1999, Complainant wrote a letter to the Registrar, complaining that Respondent had taken 20 days to complete corrective work that Inspector Walsh’s directive had allowed him 15 days to complete. In addition to the original items of complaint, Complainant alleged that the grass in the yard was not growing, a plant that Respondent had supplied had died, Respondent had promised to replace the plant but had not done so, and Respondent’s president and qualifying party still was not returning his telephone calls. Although Respondent received a copy of Complainant’s letter, the Citation and Complaint was not amended to include any additional items and Inspector Walsh did not perform another jobsite inspection. Within a few days, Complainant called the Registrar of Contractor’s office and requested a hearing. He did not file an additional complaint with respect to the new items or request that Inspector Walsh perform a second inspection to ascertain Respondent’s compliance with the June 29, 1999 directive. On September 1, 1999, the Registrar issued a Citation and Complaint against Respondent, charging it with violation of A.R.S. § 32-1154.A.7, .23, and .3. On September 10, 1999, Respondent answered the Citation and Complaint, alleging that it had complied with Inspector Walsh’s directive and, to show good faith, had also supplied Complainant with another lantana plant, even though this was not an item alleged in the complaint. On September 14, 1999, Complainant wrote another letter to the Registrar in response to Respondent’s answer, alleging that Respondent had taken too long to comply with Inspector Walsh’s directive, that Respondent’s workmen had put an irrigation line in an area that was too small for a plant, which had been taken out during the corrective work, that Respondent’s qualifying party and president did not return telephone calls, and that the repairs to the concrete were unacceptable. The letter also described the installation of a drip line through the lattice drainage hole at the bottom of a block wall and informed the Registrar that Complainant’s grass was “now doing fine.” Inspector Walsh testified at the hearing that he could not tell from Complainant’s photographs, which were admitted into evidence, whether the cracks in the sidewalks exceed what is allowed under applicable minimum standards. CONCLUSIONS OF LAW In this administrative proceeding, Complainants bear the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1064 (6th ed. 1990). The record in this matter does not show that Respondent received adequate notice of Complainant’s complaints with respect to the installation of the drip line through the lattice work drainage hole in the block wall, the dead plant, the dying grass, or any other items other than the three alleged in the formal May 3, 1999 complaint to afford it an opportunity to correct or to prepare a defense of these additional items of allegedly deficient workmanship. Moreover, Inspector Walsh has not had an opportunity to inspect these items or to attempt to mediate the parties’ dispute with respect to them, which would appear to be in both parties’ interests. For these reasons, these items are beyond the scope of this matter, which concerns solely the items alleged in the original complaint and addressed in Inspector Walsh’s directive. As discussed at the hearing, Complainant may file new complaints to the Registrar with respect to new items within two years of when Respondent performed the work. With respect to the three items alleged in the original complaint, Complainants have not borne their burden to show that Respondent has violated A.R.S. § 32-1154.A.7,[2] .23,[3] or .3[4] with respect to the sidewalk, sprinklers, or drip lines. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar dismiss Complaint No. M99-1392 against Respondent’s License No. 128200, Class C-21. Done this day, December 8, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] The undersigned on her own motion amended the caption to include Mr. Coleman as an additional complainant. Although his daughter Louise owns the house where the work was performed, Mr. Coleman lives in the house, entered the contract with Respondent, and paid for the work. He therefore has standing to assert and prosecute the complaint on his own behalf. [2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar.”

[4] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

-----------------------

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