ALJDEC

01F-2196-ROC · Registrar of Contractors · 2001-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2001 APPEARANCES: Complainant appeared on his own behalf and with the assistance of a Spanish speaking interpreter. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant contracted with Respondent for the re-paving of the asphalt parking lot for his apartment complex. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. On or about January 2001, Complainant entered into the aforementioned contract. According to Complainant, an individual by the name of Ronald Williams came to his property and asked if he would want to have his asphalt parking lot re-paved. Williams identified himself as an employee of Respondent. Complainant agreed to have the work performed by Williams and the contract price was $6,500.00. Respondent has been paid in full for the project.

3. After the work was completed, Complainant observed numerous deficiencies in the work performed by Williams. After unsuccessful attempts to have Respondent come back and correct the problems, Complainant filed the instant complaint with the Registrar of Contractors.

4. The complaint was assigned to one of the Registrar’s inspectors, who appeared at the instant hearing. The salient portions of the inspector’s uncontroverted testimony are set forth below:

a. On March 13, 2001 he conducted a jobsite inspection at Complainant’s property. Although Complainant was present, Respondent failed to appear. b. The inspector observed areas of the re-paving which were exceedingly thin. c. He further observed that areas of the re-paving were not properly compacted, as manifested by a lack of uniformity in the new surface, with many rough areas. In addition, numerous weeds and grass were growing through the new asphalt application. d. The inspector observed trash embedded in the new pavement.

5. All of the foregoing deficiencies observed by the assigned Agency inspector are found to not only constitute substandard and unacceptable workmanship but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

6. After his jobsite inspection, the inspector issued a Corrective Work Order to Respondent, directing him to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same thus, violating the applicable charged section of the State’s Contracting laws regarding the need to comply with an official Agency directive.

7. A criminal investigator for the Registrar of Contractors also appeared at the instant hearing and the salient portions of his uncontroverted testimony are as follows:

a. He also made a jobsite inspection and observed areas where water was ponding on the new paving job, variations in grade elevation, pot holes, concrete protruding through the asphalt, and a failure to provide the contracted two (2) inch thick asphalt application. b. He also testified that his investigation showed that Respondent had a history of “lending” his license to Williams for Williams own personal use.

8. The testimony presented by the investigator indicated further evidence of substandard work and a wrongful act within the meaning of the applicable charged sections of the State’s contracting laws. In addition, the evidence of record was found to be sufficient to establish that Respondent effectively aided and abetted Williams in his unlicensed construction activity.

9. By his failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

10. 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, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and 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 properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

The undisputed evidence presented established that Respondent violated the provisions of A.R.S. § 32-1154A (23), (10), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class A- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on all of the paving deficiencies described in Findings of Fact 4 (b) through (d) and 7 (a),above, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class A-14 license shall be placed on active suspension for a period of 21 days followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $350.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that any restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $3,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. Done this day, August 21, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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