ALJDEC decisions subject to certification as final

06F-1911-ROC-com · Registrar of Contractors · 2007-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2007. APPEARANCES: Sherry Waite appeared personally. Pario Construction Co., Inc. was represented by its president and qualifying party, John Gaff. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Pario Construction Co., Inc. (“Respondent”) is the holder of License No. 192698, a Class B- contracting license issued by the Registrar of Contractors. 2. On or about October 12, 2007, Sherry Waite (“Complainant”) hired Respondent to perform remodeling work at a property located at 1336 Weldon Avenue, Phoenix, Arizona. The total contract price was $17,500.00. Complainant paid Respondent a deposit in the amount of $8,500.00. 3. Respondent was to have completed its scope of work within three weeks. 4. On or about February 7, 2006, Complainant requested a refund of her $8,500.00 down payment due to Respondent’s deficient workmanship and failure to timely complete the remodeling project to minimum workmanship standards. Respondent refused that request. 5. In February 2006, Complainant hired another contractor to complete Respondent’s scope of work, due to Respondent’s failure to complete the project. 6. On or about March 10, 2006, Complainant filed a complaint against Respondent with the Registrar of Contractors because it had not completed its scope of work. 7. On or about June 20, 2006, the Registrar of Contractors issued a Citation and Complaint in Case No. 06-1911 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7) and (3), specifically A.A.C. R4-9-108. 8. On or about July 20, 2006, the Registrar of Contractors issued a default Decision and Order in Case No. 06-1911, due to Respondent’s failure to timely file an answer to the Citation and Complaint. The Registrar of Contractors concluded that Respondent had violated the provisions of A.R.S. § 32-1154(A)(7) and (3) as charged in the Citation and Complaint. 9. Pursuant to the Registrar of Contractors’ Order in Case No. 06-1911, Respondent’s contracting license was to be suspended on August 29, 2006 unless Respondent provided the Registrar of Contractors with proof that it rectified the issues set forth in Complainant’s Complaint. 10. Respondent filed a notice with the Registrar of Contractors claiming that Complainant denied him access to perform the required remedial repairs. 11. The Registrar of Contractors forwarded this matter to the Office of Administrative Hearings, an independent agency, for a hearing to “to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on July 20, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 12. Complainant is found to have been reasonable in hiring another contractor to complete the remodeling project, due to Respondent’s failure to timely complete its scope of work in a workmanlike manner. 13. Due to Respondent’s failure to timely file an answer to the Citation and Complaint, the Registrar of Contractors issued a default Decision and Order in this matter. An evidentiary hearing was not conducted, which would have revealed that Complainant had hired another contractor to complete the project. Because that fact was not known to the Registrar of Contractors when it issued its Order requiring Respondent to satisfy the issues in the Complaint as a condition to avoid suspension of its license, good grounds exist for reconsideration of the disciplinary action imposed upon Respondent as a condition to avoid such suspension of its license. 14. Respondent is found to have had ample opportunity to complete its scope of work prior to Complainant hiring a subsequent contractor. 15. Respondent never performed any work on Complainant’s project after she filed her complaint.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. The Registrar of Contractors has the power to not only order disciplinary sanctions, but also to remove disciplinary sanctions. The facts and circumstances presented at the compliance hearing militate for the conclusion that reconsideration of the appropriateness of the original disciplinary action since Complainant had her complaint issues rectified by another contractor prior to the Registrar of Contractors’ default Decision and Order. Nevertheless, said reconsideration further justifies the imposition of other disciplinary sanctions. 3. Pursuant to A.R.S. § 32-1156.01, Respondent should be required to provide restitution to Complainant in the amount of $8,500.00 as a condition to be imposed upon Respondent to avoid the suspension of its contracting license.

RECOMMENDED ORDER ON COMPLIANCE HEARING

Respondent’s License No. 192698 shall be suspended on the effective date of the entered Order on Compliance Hearing in Case No. 06-1911 until Respondent provides the Registrar of Contractors with written proof that it has paid restitution to Complainant in the amount of $8,500.00. If Respondent provides the Registrar of Contractors with written proof that it has paid restitution to Complainant in the amount of $8,500.00 on or before the effective date of the entered Order on Compliance Hearing, then the above-provided license suspension shall not take place, and Case No. 06-1911 shall be closed. 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 on Compliance will be 40 days from the date of that certification.

Done this day, January 31, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

-----------------------

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