ALJDEC decisions subject to certification as final

05F-M2391-ROC-com · Registrar of Contractors · 2009-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2008

APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, John Gilbert. 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. The instant matter came on for hearing pursuant to a decision of the Registrar of Contractors to hold a compliance hearing, limited to the issue of compliance with the terms and conditions of a previously entered Decision and Order in this matter. In this regard, on December 24, 2008 the Registrar issued a Notice of Compliance Hearing, which provided that the instant compliance hearing shall be conducted “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on June 29, 2007 and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.”

2. Based on the foregoing, the parties were advised at the outset of the scheduled compliance hearing, as well as during the course of the instant hearing, that the scope of the hearing was very limited and no issues unrelated to the issue of compliance would be determined at the instant hearing.

3. The prior Decision and Order memorialized a settlement agreement between the parties, wherein Respondent agreed to accomplish specified remedial work within a stated period of time. At the outset of the scheduled hearing, it was shown that the only issue Complainant contends was in non-compliance was the issue of the repainting of the kitchen cabinets.

4. It was also shown at the outset of the hearing that Complainant no longer has possession of the home. Apparently, she stopped making payments for the home on or about June 2008.

5. Complainant asserts that the cabinet repainting work failed, as demonstrated by paint that is flaking and chipping of the cabinets. In addition, she showed that a number of cabinet doors have loose hinges and/or were misaligned during the reinstallation process.

6. Although there was an allegation that Complainant placed some type of clear packing tape on the newly painted cabinets, she denies having done this.

7. Evidence of record showed that although the repainting of the cabinets was not completed before the deadline date set forth in the settlement agreement, part of the reason was based on Complainant seeking a delay due to the company that she had living in her home at the time, and the need to have the home vacant while the repaint was taking place.

8. An additional reason for the delay in getting the repainting completed involved the fact that some of the drawers and doors needed to be redone and had to be taken away by the subcontractor for repainting. This subcontractor went out of business and absconded with the doors and drawers. Thus, new drawers and doors needed to be ordered and that took additional time.

9. Complainant’s request for a compliance hearing was received by the Registrar of Contractors on October 12, 2007 and said document only referred to “incomplete warranty work including cabinet restoration and painting.” There were no details regarding what she was claiming was wrong with the cabinet repaint work. Respondent’s member and qualifying party, Joe Dotty, appeared at the hearing and testified that he never received any communication from Complainant indicating the paint failing on the cabinets. In fact, he testified that the first he heard about the paint failing was at the instant compliance hearing.

10. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work.

11. Although the failure of the repaint job on the cabinets represents non-compliance with the terms and conditions of the Order of the Registrar previously entered in this matter, the fact that Respondent was not given any proper notice and opportunity to correct serves as a matter in mitigation for any disciplinary penalties that may be imposed as a direct result of this hearing on compliance.

12. Based on the foregoing and in accordance with the Notice of Hearing issued in this matter, some form of disciplinary sanction is found to be appropriate. However, since Complainant no longer has possession of the home, a condition providing for further corrective work would be inappropriate.

13. 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 Registrar of Contractors had previously imposed a significant period of probation and a disciplinary bond on this license, apparently due to Dotty’s activities on another license or licenses. Nevertheless, there are no open complaints or any other disciplinary sanctions on Respondent’s Class B- license since that time. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent failed to fully comply with the terms and conditions set forth in the original decision and order issued in this matter.

2. In view of Respondent’s failure to accomplish total compliance with the June 29, 2007 Order of the Registrar and in accordance with the December 24, 2008 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Respondent’s Class B license.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be placed on a period of disciplinary probation for 120 days. It is further recommended, in addition to the above provided penalty, that any continuation 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 $2,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation 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. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, February 9, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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