ALJDEC decisions subject to certification as final

05F-T1208-ROC · Registrar of Contractors · 2007-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2007, at 1:30 p.m. APPEARANCES: The Complainant appeared through its authorized representative, Ralph DeLorto. The Respondent appeared through its attorney, Ros Ferrier. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has substantially complied with the terms and conditions of the previously entered Decision and Order of the Registrar of Contractors. Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The prior Order of the Registrar of Contractors, which has become final in the absence of any timely appeal, provides for the suspension of the Respondent’s Class A- License unless or until the Respondent has properly complied with the terms and conditions of the prior Order of the Registrar of Contractors. 2. The prior Order provides, in pertinent part, as follows: “IT IS ORDERED suspending Respondent’s Class A- License commencing on the effective date of this Order (40 days after the mailing date, shown below), until the Registrar received proof that Respondent has appropriately rectified the items involved and detailed in the Complaint and the Agency’s written directive.” 3. The Corrective Work Order provides, in pertinent part, as follows: “1. Audie Holmes of Mac’s Grading, Paving and Engineering Inc., agreed to seal coat the paved areas throughout after the drainage problems have been resolved. 2. The ponding is excessive and unacceptable. The contractor laid the asphalt. The property owner hired another to survey and “shoot” elevations. Correct the ponding according in all agreements, contract, plans, drawings, prints, original survey, etc. 3. The concrete slab patches appear to be acceptable. 4. Holmes agreed to “dress-up” the pavement edges along the buildings by appropriate means.” 4. Credible testimony and evidence, presented at the Compliance Hearing, established the Respondent has failed to substantially comply with the terms and conditions of the prior Order. 5. Credible evidence established the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms and conditions of the prior Order of the Registrar of Contractors. On the contrary, credible testimony and evidence, presented during the Compliance Hearing, established the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the prior Order of the Registrar of Contractors based upon the Respondent’s disagreement with the terms and conditions of the Corrective Work Order. 6. Both parties demonstrated an ongoing inability to effectively communicate or to properly schedule their onsite work and both repeatedly resorted to the use of agency personal to act as intermediaries. This is not an appropriate agency function. The parties are fully capable of properly scheduling the corrective action required by the Corrective Work Order. 7. The Respondent shall give the Complainant at least seventy two hours written notice of the time and date selected to perform the corrective action required by the Corrective Work Order. 8. The Complainant is admonished that any unreasonable denial of access shall be treated as the substantial equivalence or compliance with the terms and conditions of the prior Order issued in this matter.

CONCLUSIONS OF LAW 1. Credible testimony and evidence presented during the Compliance Hearing supported findings that the Respondent has not substantially complied with the terms and conditions of the prior Order of the Registrar of Contractors. 2. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate, disciplinary action against the Contractor’s License.

RECOMMENDEd order on compliance hearing In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order on Compliance Hearing, the Respondent’s Class A- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the prior Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order on Compliance Hearing, then the above provided License suspension shall 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 the certification. Done this day, February 23, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488