ALJDEC decisions subject to certification as final

04F-P0224-ROC · Registrar of Contractors · 2004-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 17, 2004 at 1:30 p.m. APPEARANCES: The Complainants appeared through David Loomis. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of a Class KA- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a driveway for the Complainants’ residence. 3. After taking possession of their residence the Complainants noticed that the driveway was cracking, heaving and had an unacceptable hump in it. 4. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct his work to their satisfaction despite repeated requests that he do so. 5. When the Respondent declined to correct their driveway the Complainants filed a formal complaint, against the Respondent, with the Registrar of Contractors. 6. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The written corrective work order provides, in pertinent part, as follows: “1. Base under paved driveway is not sufficient for driveway and driveway is sinking and humped up. Contractor to correct by appropriate means.” 8. There was no dispute that the Respondent failed to comply with the written corrective work order within the fifteen (15) days set forth in the written corrective work order. 9. The Respondent asserts that he declined to comply with the written corrective work order on the basis that he could not have reasonably know of any problems with the Complainants’ soil and that the Complainants’ driveway was constructed in accordance with normal industry standards. 10. The Respondent also asserts that he should be excused from compliance with the terms and conditions of the written corrective work order for the reason that the concrete subcontractor damaged the driveway while correcting the Complainants’ concrete garage floor. 11. There was no dispute that the concrete subcontractor did remove the hump in the driveway so that it could use the driveway to gain access to the concrete garage floor so that it could perform corrective action on the garage floor. 12. Credible testimony and evidence, presented at hearing, established that the Complainants had nothing to do with the concrete subcontractor’s actions in removing the hump in the driveway. 13. Credible testimony and evidence, presented at hearing, established that the Respondent had failed to properly prepare the soil under the Complainants’ driveway prior to the installing the driveway. 14. The Respondent’s actions, in performing construction work which failed to comply with applicable workmanship standards and in failing to comply with the terms and conditions of a written corrective work order, are found to constitute a wrongful act. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class KA-license be suspended unless the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written corrective work order by properly correcting the Complainants’ driveway. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension not take place and that this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this day, November 29, 2004

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488