ALJDEC

01F-2280-ROC · Registrar of Contractors · 2001-09-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2001.

APPEARANCES: The Complainants appeared in their own behalf. The Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Testimony was presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The start of the scheduled hearing, that had been set on advance written notice to all parties, was delayed for approximately twenty-five minutes so as to afford additional time for Respondent to appear. However, the corporate Respondent did not appear through any authorized employee or through any proper legal representative.

2. Pursuant to a written agreement, supplemented by subsequent change orders, Respondent agreed to and did construct a residence for Complainants. The stated purchase price was fully paid to Respondent by Complainants.

3. Complainants were prompted to file the within complaint with the Registrar after a prolonged period on unresponsiveness on the part of Respondent to whom numerous and repeated requests and demands for corrective or completion action had been communicated.

After a jobsite visit, the Registrar’s assigned Inspector issued a written directive to Respondent indicating various items of complaint that were confirmed as being substandard and unacceptable deficiencies or otherwise necessitating remedial action. The undisputed testimony presented at the hearing demonstrated that the following items, all listed on such written directive, constitute either a breach of Respondent’s contractual obligations or reflect adversely upon its workmanship. Numbers in parenthesis following each of the subsections correspond to the separately listed items set forth in the Inspector’s directive.

(a) An interior pantry door in the kitchen was not appropriately finished so as to reasonably match the other cabinetry and was installed with the rough surface side facing into the room. A replacement of such door by Respondent is fully warranted at this time. (Item #3).

Although the parties’ contract specified that stereo pre-wiring was to be included, and the basic cost price was increased for the inclusion of this feature, Respondent failed to accomplish, or even to commence, the required pre-wiring work. This work must be undertaken and properly completed by Respondent, to include

appropriate restoration and refinishing at all surface locations necessarily disturbed during the performance of the pre-wiring work at this time. (Item #4).

(c) Respondent was shown to have failed to provide a porthole in the laundry room door, a feature for which an extra charge was made and collected in a subsequent change order to the basic construction contract. Additionally this same door was damaged by Respondent’s workers or subcontractors by leaving unrepaired holes at the bottom, and the entire door has become warped to an excessive degree, thereby interfering with its operational functioning. These deficiencies or deviations must be properly rectified by Respondent. (Item #5).

(d) The French Doors to the exterior from the Bonus Room have continually leaked, with water capable of penetrating at the center T- astragal near the threshold. This leaking condition was never effectively repaired by Respondent, and appropriate remedial work to curtail and eliminate such leakage must be accomplished by Respondent. (Item #6).

(e) Despite an applicable requirement in a change order for which extra costs were charged and paid by Complainants, specified bronze hinges were never installed on the entry door by Respondent. Additionally, the rest of the hardware needed for this entry door was never furnished by Respondent, and it became necessary for Complainant to purchase such hardware in order to make the entry door operational and to secure the premises. The cost of basic hardware needed for the entry door was shown to be in the amount of $395.00. However, no reimbursement for the omitted entry door hardware that was to be included in the cost of the home was ever made or tendered by Respondent. Respondent is determined to be obligated to pay this sum to Complainant as well as to provide and install the specified bronze hinges. (Items ##7 and 8).

(f) Numerous and scattered holes were allowed to remain at many locations in the interior drywall after work performed by Respondent’s electricians. All such holes must be appropriately filled, patched, textured and re-painted by Respondent. (Item #11).

5. It must be held that Respondent has not substantially complied with the terms of the written directive issued by the Inspector. By way of further matters in aggravation, Respondent’s overall course of conduct during and after the residence was completed for occupancy was shown to reflect a significant disregard for the entitlements and comforts of the homeowners as well as a disregard of its duties as a licensed general contractor under the State’s contracting laws. Although the testimony included several more examples of unresponsiveness and perhaps actionable wrongdoing with respect to the lack of genuine interest and integrity on the part of Respondent, such as contractual breaches involving omitted countertops and a driveway apron, these aspects of the parties’ dealings were not part of the filed formal complaint with the Registrar. However, Complainants remain free to pursue available remedies for other provable financial damages in another, more appropriate civil forum.

6. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

Notice is taken of the Registrar’s license records which reveal that Respondent’s Class B license has been suspended by operation of law for non- renewal since July 31, 2001. This suspended license status of Respondent does not preclude the pursuit by Complainants of their administrative remedies nor the conducting of these disciplinary proceedings. Moreover, the such suspended status of the license must be considered when formulating an appropriate Order in this action. Since little or

no motivation would exist for any contractor to undertake and complete any remedial measures to avoid the imposition of a suspension of an already- suspended license, the non-compliance by Respondent with any condition deemed proper for inclusion in the Order to be entered hereunder should result in the revocation of Respondent’ s license.

8. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

CONCLUSIONS OF LAW

1. The uncontroverted evidence of record adequately established violations by Respondent of the provisions of A.R.S. §32-1154(A)(7), (23) and (3); namely, Rule R4-9-108. A.A.C. . RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Registrar’s Order entered in this matter.

It is further recommended that if, on or before this Order’s effective date, Respondent accomplishes or causes the accomplishment of remedial work to rectify the items set forth in Findings of Fact Numbered 4(a) through 4(f), inclusive, in a proper, workmanlike manner and has paid or tendered the sum of $395.00 to Complainant, then no license revocation shall be imposed, but instead Respondent’s Class B license shall be actively suspended for a period of 15 days, followed immediately by a period of disciplinary probation for 90 days. This alternative penalty shall commence, if at all, on the effective date of the Registrar’s Order.

It is further recommended, if the above-described alternative penalties are applicable and in addition to such penalties, that Respondent pay the sum of $300.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). 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 extended 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.

Dated: September 7, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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