ALJDEC

01F-2646-ROC · Registrar of Contractors · 2002-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 2, 2002 APPEARANCES: Complainants appeared through Co-Complainant, Kristine Biscotti and 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. Pursuant to contract, Complainants retained Respondent for the purpose of accomplishing specified home remodeling and the construction of an addition onto their home. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. As part of the above-described construction project, Respondent applied a new stucco finish to the existing home and the new addition portions of said home. Uncontroverted evidence of record established that subsequent to the installation of the new stucco system, Complainants have experienced excessive cracking of the stucco over the entire existing home and addition. Many of the cracks are compound in nature and appear on not only vertical surfaces but also on horizontal surfaces of the home.

3. Evidence presented at the instant hearing also established that Respondent failed to install an appropriate control joint for the stucco application between the existing home and the new addition.

4. The stucco work performed by Respondent is not only found to constitute substandard and unacceptable workmanship but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

5. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. Respondent’s failure to comply with the Agency directive constitutes a violation of the applicable charged section of the State’s Contracting laws regarding the requirement to accomplish remedial work that is set forth in a directive (Corrective Work Order) from the Registrar of Contractors.

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

7. Although Respondent was charged with a violation of A.R.S. § 32- 1154A (10), there was no evidence presented at the instant hearing regarding aiding and abetting of unlicensed contractors by Respondent.

8. 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.

9. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended since October 1, 2001 for failure to renew his license. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license. . . . . . . . . . CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

2. Evidence of record failed to support any finding that Respondent violated A.R.S. § 32-1154A (10).

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 Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on the stucco cracks and installs the appropriate control joints 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 B license shall be placed on active suspension for a period of 5 days followed immediately by a period of disciplinary probation for 120 days. 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 $225.00 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 $1,500.00, 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, January 7, 2002

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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