ALJDEC

01F-R0182-ROC · Registrar of Contractors · 2001-10-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2001 APPEARANCES: Complainant : John Jakubczyk, Attorney at Law, represented Lukert Tile, Inc.; Robert M. Lukert, Qualifying Party, testified on his own behalf. Respondent : Dawn Walton Lee, Assistant Attorney General, State of Arizona, represented the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Evidence and testimony were presented at the hearing conducted by the undersigned Administrative Law Judge. Based upon the entire record, the following Finding of Facts, Conclusions of Law, and Recommended Order are issued.

FINDINGS OF FACT 1. On June 18, 2001, the Registrar of Contractors issued a Citation and Complaint against Respondent’s Class C-48 licenses with a view toward the imposition of disciplinary sanctions upon allegation that Respondent was in violation of A.R.S. ( 32-1154 (A) (21).

2. Respondent stipulates that he was the sole proprietor of and Qualifying Party for Lukert Tile L.L.C. (formerly, Lukert Tile), from its registration with the Registrar of Contractors and the Registrar’s issuance of a license on November 28, 1984 to the Registrar’s revocation of the license on August 14, 2001. 3. The Registrar revoked the license of Lukert Tile L.L.C. subsequent issuance of Citation and Complaint No. M00-0433 (hereafter, complaint M00-0433) and Respondent’s default in response thereto. 4. Respondent, Robert M. Lukert, stipulates that he is the Qualifying Party listed on a license issued to Lukert Tile by the Registrar of Contractors, namely, license number 061598, initially issued in November 1984. 5. Respondent further stipulates that he is the Qualifying Party identified on license number 137050. 6. As a defense to this complaint, Respondent avows that he desires to cure all deficiencies which led the homeowner to initiate a complaint against Lukert Tile in complaint M00-0433, by making corrections and additions to work which previously had been performed pursuant to agreement with the homeowner. 7. As further defense to this complaint, Respondent notes that at one point he was given notice by the Registrar that Complaint No. M00- 0433[1] would be closed as of December 28, 1999. Thereafter, he was given a notice indicating that the matter had been reopened by the Registrar’s Inspector. Again thereafter, the contractor was provided notice that the complaint had been closed on June 1, 2000. During this period, Mr. Lukert continued to perform work on the subject home. In short, the course of events was confusing to the contractor. Additionally, the contractor admits that he did not pay as close attention as he should have to documentation sent to him by the Registrar, that he was “in over his head” with the paperwork. 8. Mr. Lukert’s testimony was credible and convincing. He stood nothing to gain by ignoring complaint M00-0433 and responded in appropriate fashion initially upon notice of the homeowner’s manifestation of disconcertion. 9. Complaint M00-0433 and the complaint presently before this tribunal are the only complaints of record which have been filed against Mr. Lukert’s licenses either as Qualifying Party for Lukert Tile or as Lukert Tile L.L.C. 10. Respondent indicated at the hearing that he has made overtures to the homeowners in complaint M00-0433 to inquire about the status of their tile job concerning which they have previously made objection and to apprise the homeowners of his willingness to address matters that have been heretofore left unaddressed. Respondent requested additional time within which to take care of the homeowner’s concerns. 11. The record was held open to October 19, 2001 to enable Respondent to accomplish whatever Respondent might be able to do in an effort to ameliorate the risk to his current license. 12. On October 19, 2001, counsel for Respondent moved to dismiss the complaint against the license of Lukert Tile L.L.C. In support thereof, counsel has provided e-mail letters from Steve and Susan Grimm, the homeowners that are the subjects of the original complaint. The Grimms have given notice by these communications that as of October 15, 2001 Mr. Lukert has “completed the repairs on the tile to [their] satisfaction.” Further, the homeowners have indicated that the floors look “wonderful.”[2] 13. The weight and sufficiency of the evidence presented in this matter preponderates (1) that Robert M. Lukert did not desire to evade responsibilities in the M00-0433 matter; (2) that the course of events in matter M00-0433 were fraught with confusing indicators from the Registrar concerning the status of the complaint; (3) that Mr. Lukert is lacking skills requisite to processing necessary paperwork in furtherance of business endeavors; (4) that the homeowners in complaint M00-0433 have been satisfied by Mr. Lukert’s remedial repair; and, (5) that Robert M. Lukert has been engaged in the tile installation business for a period of 17 years with a noticeably clean record.

CONCLUSIONS OF LAW 1. The evidence of record sufficiently established that Respondent is named on a license that has been revoked by the Registrar while, at the same time, named as Qualifying Party on an active license, all in violation of A.R.S. ( 32-1154 (A) (21). 2. Notwithstanding justification for the imposition of sanction(s) against this Respondent contractor, factors of mitigation established at the hearing, including a lack of intent to evade statutory requirements and Respondent’s manifest intent to comply by making corrections to the project concerning which certain homeowners had voiced objection before the Registrar in complaint M00-0433, warrants an exercise of discretion by the Registrar, pursuant to A.R.S. ( 1132 (B), favorable to Respondent.[3] 3. Respondent’s failure to answer the complaint filed in M00-0433 led the Registrar to draw inference of admission to the charges made therein as well as indications of recalcitrance by the contractor. The Registrar’s revocation of the license was, therefore, appropriate in conformance with A.R.S. ( 32-1155 (B). However, Respondent has demonstrated a mitigating circumstance for which the harshness of any penalty ought to be ameliorated in light of the circumstance.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors enter an Order placing the license of Lukert Tile L.L.C. (license no. 137050) on probation for a period not to exceed thirty (30) days. Set forth this 25th day of October in the year 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater, Director Att’n: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Along with its companion M00-0434. [2] Hearing Exhibit 6. [3] Respondent’s counsel has been informed by the Assistant Attorney General that the Assistant Attorney General takes no position on Respondent’s Motion to Dismiss.

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