ALJDEC

01F-P0263-ROC · Registrar of Contractors · 2001-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2001 APPEARANCES: Complainant appeared on his own behalf 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. Complainant retained Respondent for the purpose of constructing a new home. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were established at the hearing and are important to note:

a. Complainant retained his own architect to design the custom home in question. b. Complainant contacted Great Bear Homes regarding the construction of his new log home and said company referred him to Respondent. c. Complainant and Respondent executed the contract for the construction of the home on or about April 29, 1999. The contract price was for a total of $123, 484.92, payable through specified progress payments. d. Respondent commenced work on the project on or about July 1999. e. Sometime during the course of the construction project, Complainant began to observe certain deficiencies in the work performed by Respondent, including major deviations from the plans and specifications. f. After having an ongoing problem with not only Respondent’s work on the project but also his lack of diligence in getting the project finished, Complainant, in November 1999, ultimately told Respondent to leave the project after Respondent had demanded a payment advance for specified decking material. This advance was not called for in the applicable contract. g. Shortly after the aforementioned incident in November, Complainant retained the services of his architect to examine the project and in December 1999 the architect filed his inspection report, setting forth numerous deficiencies and/or plan deviations in the work performed and materials provided by Respondent. h. After reviewing the architect’s report, Complainant lost all confidence in Respondent and elected to complete the project on his own. At the time of Respondent’s dismissal from the project, Complainant had paid Respondent a total of $50,000.00, leaving a balance on the original contact of $73,484.92. i. Complainant testified that he paid approximately $20,617.01 to correct all of the deficiencies in the work performed by Respondent. After correcting the deficiencies he then expended the sum of approximately $113,000.00 to complete the project. j. A portion of the $20,617.01 figure involved monies paid by Complainant to an unlicensed contractor and another portion included what Complainant believed was the value of his own personal man hours spent on this aspect of the project. k. Complainant testified that there are some upgrades (over and above what Respondent was contracted to provide in the original contract) included in the above-described $113,000 figure. l. On June 5, 2001 Complainant filed the instant complaint with the Registrar of Contractors. m. Complainant averred that through this action with the Registrar of Contractors he is seeking a revocation of Respondent’s license and access to the Residential Contractors’ Recovery Fund.

3. The above-described December 1999 architect report was entered into evidence at the instant hearing as Complainant’s exhibit no. 1. Said report is attached hereto and incorporated herein by reference, as if fully set forth in this Decision and Order. All of the findings set forth in the report are uncontroverted.

4. Complainant presented evidence and testimony showing that in addition to the deficiencies and deviations from plans and specifications set forth in the December 1999 report from the architect, that there is a very significant crack present in the basement slab placed by Respondent. The crack was shown to be approximately thirty four (34) feet long, to be over ¼ inch wide in specified locations and also there are areas of the crack where vertical displacement is evident.

5. The undisputed evidence of record was sufficient to support a finding of substandard and unacceptable workmanship attributable to Respondent, along with material and prejudicial deviations from the plans and specifications. In addition, Respondent’s work on the project is found to constitute a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. Respondent’s work on this project is found to be so substandard, that one can only wonder how Respondent ever qualified to receive the highest level residential license issued by the Registrar of Contractors. The facts presented herein support the imposition of the most serious of disciplinary sanctions available to the Registrar.

6. By its failure to appear for the instant hearing, Respondent failed to present and matters in defense or mitigation.

7. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended since April 19, 2000 for failing to comply with an Order of the Registrar. In addition, Respondent has been suspended by operation of law since May 1, 2001 due to a Recovery Fund payout against another license wherein one or more of Respondent’s principals appear. Such suspensions do 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.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (2), (7), and (3); namely Rule R 4-9-108.

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. Done this day, October 9, 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