ALJDEC

01F-F0023-ROC-COM · Registrar of Contractors · 2002-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2002, at 8:30 a.m., in Flagstaff, Arizona. APPEARANCES: COMPLAINANT: by Whitney Cunningham, Esq., with Steve and Laurine Bell. RESPONDENT: did not appear.

ADMINISTRATIVE LAW JUDGE: Anthony Halas. _____________________________________________________________________ This matter proceeded to a compliance hearing to determine whether Respondent RKM Construction L.L.C. has substantially complied with the terms and conditions of the Registrar of Contractors’ Order issued on August 3, 2001, and for reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed. Based on the evidence presented, as well as administrative notice of certain events relative to the procedural history herein, the following Findings of Fact, Conclusions of Law, and Recommended Order are made and submitted to the Arizona Registrar of Contractors:

FINDINGS OF FACT

1. The instant hearing was convened at the request of Complainant America West Frames Inc. for the purpose of determining whether Respondent RKM Construction L.L.C., License No. 114079, Class B-02, has substantially complied with the terms and conditions set forth in the ORDER entered by the Registrar of Contractors on August 3, 2001, and for a possible reconsideration of disciplinary penalties. 2. That Order adopted the July 20, 2001 RECOMMENDED DECISION of administrative law judge Allen Reed, and became final as to this Respondent, RKM Construction L.L.C.[1] 3. The Order therefore required Respondent subcontractor RKM Construction L.L.C. [jointly and severally liable with the general contractor, Loven Construction Inc.] to determine the cause of, and repair the unevenness, bumps and cracks on the [concrete] floor in a workmanlike manner within thirty days of the effective date of the Registrar’s Order, or have its license suspended until such determination and repair was made. The scope of this proceeding on compliance is thus limited to whether such action was taken and accomplished. 4. At hearing, Complainant America West Frames Inc. appeared through counsel and presented the testimony of Steve Bell (Bell), president of the corporation. Complainant offered Exhibit A/1 - 24 (24 photographs) which were marked and admitted. 5. Respondent RKM Construction L.L.C. did not appear through any representative at the time and place set for hearing, or through 10:00 a.m. that day, although administrative notice of the Notice of Compliance Hearing issued by the Registrar of Contractors on December 28, 2001, confirms that a copy of said notice was mailed by certified mail to Respondent’s address of record with the Registrar. 6. The Registrar’s inspector Mark Schweiger appeared and testified to confirm that no compliance inspection had been requested or conducted. For that reason, he was excused from further testimony. 7. Steve Bell testified to describe certain surveying, grinding and epoxy crack-filling repair work done to the concrete floor on or about September 7, 2001, subsequent to the Registrar’s Order. Bell was unaware whether the repairmen were affiliated with Respondent subcontractor RKM Construction L.L.C. or the general contractor, Loven Contracting Inc. He also noted that other repairs had been attempted prior to the Registrar’s Order. 8. A. Bell testified that Complainant has been provided no information determining the cause of the unevenness, bumps and cracks on the floor.

B. Bell also referenced 24 photographs (Exhibit A) he had taken on March 20, 2002, to demonstrate and explain why he considered the repairs done (both before and after the Registrar’s Order) to be inadequate, and why other repairs were necessary but had not be done. 9. For those reasons, Complainant contends that Respondent RKM Construction L.L.C. has not “…determined the cause of, and repaired the unevenness, bumps and cracks on the floor, in a workmanlike manner”, and therefore has not substantially complied with the Registrar’s Order. 10. By its failure to appear for the duly-scheduled compliance hearing, Respondent RKM Construction L.L.C. failed to present any testimony or evidence in contravention to the testimony and evidence presented by Complainant America West Frames Inc.

CONCLUSIONS OF LAW 1. The Registrar’s Order previously entered in this matter is self- operative, requiring Respondent RKM Construction L.L.C. to provide the Registrar of Contractors with proof that it has substantially complied with the terms and conditions set forth therein. 2. The uncontroverted evidence of record establishes that Respondent RKM Construction L.L.C. has failed to accomplish substantial compliance with the terms and conditions of the Registrar’s Order.

RECOMMENDED ORDER IT IS RECOMMENDED that, commencing on the effective date of the Registrar of Contractors’ Order in this matter, the Class B-02 license of Respondent RKM Construction L.L.C. be suspended until the Registrar receives proof that Respondent has determined the cause of, and repaired the unevenness, bumps and cracks on the floor, in a workmanlike manner. IT IS FURTHER RECOMMENDED that if Respondent RKM Construction L.L.C. accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place, and in that event this Citation, and the Complaint upon which it is based, shall be closed. Done this day, April 4, 2002.

______________________________________ Anthony Halas 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 ___________________________

----------------------- [1] Co-Respondent Loven Contracting Inc. has appealed the Registrar’s Order. That appeal is presently pending in the Coconino County Superior Court, but RKM Construction L.L.C. is not a party to the appeal.

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