ALJDEC

00F-H0027-ROC-COM · Registrar of Contractors · 2000-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2000 APPEARANCES: Complainants Jody and Max Cornia appeared, representing themselves. Respondent Frank Ahern did not appear, nor did any person arrive on his behalf. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent had complied with the ORDER as issued by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Frank Ahern was the general contractor in the construction of a new residence for Complainants Jody and Max Cornia in Bullhead City, Arizona. 2. After filing a formal complaint with the Registrar concerning Respondent’s workmanship at the residence, this tribunal held a formal hearing in April 2000. The Administrative Law Judge determined that the workmanship problems remained as to the rear block walls’ stucco color and texture, and recommended that these should be rectified to prevent the license of Respondent being suspended. Respondent was determined to be in violation of A.R.S. §32-1154.A.23 and A.3, namely A.A.C. R4-9-108. The Registrar adopted the Administrative Law Judges’ recommendations, with a minor non substantive modification to refer to “Complainants” as plural and not singular. 3. After a compliance inspection, the Registrar determined that the Respondent’s corrective work met the requirements for cement color. The Registrar issued it ORDER closing the matter on July 18, 2000. 4. On July 19, 2000, the Registrar received Complainants’ letter indicating that the interior of block walls could be painted (contrary to Respondent’s compliance assertions) and requested that the work order stand and that the Respondent paint the interior walls. 5. On July 28, 2000, the Registrar reopened the matter and referred the matter for compliance hearing to be set in Kingman, Arizona, in the normal course of docketing. The Registrar issued its Notice of Hearing in this matter on August 17, 2000, setting the matter for hearing to be held on December 4, 2000. This tribunal was unable to accelerate the matter due to normal calendaring of remote location cases. 6. At the time set for hearing, Respondent did not arrive, and no evidence was presented to the tribunal on his behalf for consideration. 7. Complainants presented uncontroverted testimony regarding the workmanship noncompliance and the need to repaint the wall after the retexturing had been completed. Complainants believe that Respondent has moved out-of-state to California. 8. At the hearing, the Registrar’s Inspector presented uncontroverted testimony of the Order requiring both retexturing and repainting with elastomeric after the retexturing for Respondent to be in compliance with workmanship standards and the Registrar’s ORDER. THE APPLICABLE LAW

Arizona Administrative Code (A.A.C.) R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

Arizona Revised Statutes (A.R.S.) §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following:

3. Violation of any rule adopted by the Registrar. xxx 23. Failure to take 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...

CONCLUSIONS OF LAW

1. A respondent’s failure to make corrective actions designated in a Registrar’s CWO is violation of A.R.S. §32-1154.A.23. The Registrar Ordered Respondent to make the necessary corrections to his work. The testimony and undisputed evidence shows that Respondent has not completed the Ordered work and the work does not meet workmanship standards. Therefore, it is determined that Respondent continues to be in violation of the provisions of A.R.S. §32-1154.A.23 and A.3, namely A.A.C. R4-9-108.

2. The totality of the testimony and undisputed evidence in this case supports findings of noncompliance with the workmanship standards and the Registrar’s ORDER in this matter. That Ordered work could have easily been accomplished through the actions of this Respondent or another licensed contractor to prevent this matter from continuing to this point. RECOMMENDED ORDER 1. In view of the foregoing, based on the workmanship problems and the Respondent’s blatant disregard or refusal to complete Ordered work, it is recommended commencing on the effective date of this ORDER, that the Respondent’s Class B License No. 107193 be revoked. RECOMMENDED ORDER this day: December 19, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

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

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827