ALJDEC

00F-2017-ROC · Registrar of Contractors · 2000-08-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on August 2, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainants: Terry Bays Smith, Attorney for Complainants.

For Respondent: Default in Attendance at Hearing.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Due notice of the hearing scheduled for this matter was duly mailed to all parties of record and the Respondent failed to appear and attend although the hearing was delayed for a period of 15 minutes to accommodate a late appearance. Complainants contracted with Respondent under a contract dated March 21, 1999, as amended by two change orders, (the “Contract”), for the installation of a pool with the added provision for a diving pool and extra “kool” decking. The agreed upon price for this work was a lump sum of $22,500.00, payable in accordance with the terms of the Contract. Complainants’ Exhibits. 2, 3 and 4. 3. The uncontroverted evidence presented establishes that Respondent’s workmanship in performing in accordance with the terms of the Contract was woefully inadequate and led to the filing of the complaint in this matter on February 17, 2000. 4. As a result of the complaint being filed in this matter, an on- site inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter, dated March 9, 2000, (“Corrective Work Order”) being sent to Respondent requiring that certain corrective or remedial work be performed within a stated period of time. The evidence of record establishes that Respondent failed to comply with the Corrective Work Order as issued by the Registrar of Contractors. Of the 8 items set forth in the Corrective Work Order, 2 remain to be completed by Respondent, namely, the repair of the “kool” deck cracks and grout in and around the tile line. It is signal to note that the pool plaster surface has been entirely replaced by the installing subcontractor as a result of complaint filed against that subcontractor. This was accomplished without the assistance or cooperation of Respondent. Administrative notice is taken that Respondent’s Class B-05 License No. 111695, a general swimming pool contractor license, has been suspended twice in the past two years for lack of a bond. More importantly, notice is officially taken that during the past two years Respondent has had no less than 32 complaints filed against its license, many of which involve a claim of abandonment and have received no response from Respondent.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). 2. The burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)((1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2-19-119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 3. The Citation and Complaint alleges that Respondent: (a) violated A.R.S. §32-1154 A (7), (23), and (3), namely Rule R4-9-108. These provisions provide for disciplinary action to be taken against a licensee for:

7) The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

23) Failure 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.

3) Violation of any rule adopted by the registrar; namely Rule R4-9-108 which details and establishes the workmanship and professional standards to be used in determining whether a violation of this subsection has occurred.

By a preponderance of the evidence, Complainant has established that Respondent has intentionally committed a wrongful act by failing to properly and in a workmanlike manner install the pool and the “kool” deck, and to otherwise perform the terms and provisions of the Contract on Respondent’s part to perform, all in violation of A.R.S. §32-1154 A (7). By a preponderance of the evidence, Complainant has established that Respondent intentionally failed to comply with the Corrective Work Order issued by the Registrar of Contractors in violation of A.R.S. §32-1154 A (23). By a preponderance of the evidence, Complainant has established that Respondent has failed to perform the work undertaken pursuant to the Contract in a professional and workmanlike manner in violation of A.R.S. §32-1154 A (3), namely Rule R4-9-108. The inordinate number of unresolved complaints filed against Respondent’s license, a number of which involve abandonment of contractual responsibility, is egregious conduct such that it may be held to be a matters in aggravation of the violations evidenced in this case and, therefore, appropriate for consideration when imposing any disciplinary penalties. Respondent’s conduct in this case in failing to promptly and adequately address the workmanship items detailed in the Corrective Work Order, coupled with the lack of any mitigating circumstances evident in this case and the myriad complaints pending against Respondent, it is clear that revocation of Respondent’s license is appropriate without the imposition of specific direct or lingering conditions.

RECOMMENDED ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class B-05 License No. 111695 shall be revoked on the effective date of the Order entered in this matter.

ENTERED this day, August 2, 2000.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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