ALJDEC decisions subject to certification as final

06F-1953-ROC · Registrar of Contractors · 2007-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2007 APPEARANCES: Complainant appeared on his own behalf via telephone and Respondent failed to appear. 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. Pursuant to contract, Complainant retained Respondent to accomplish a roof replacement and specified remodeling work on the home. Complainant alleges certain deficiencies in the work performed by Respondent and these deficiencies caused him to terminate the contract, prior to completion of same. The facts surrounding these issues are discussed in the findings below.

2. The following uncontroverted facts were established at the hearing:

a. The total amount of the contract for the remodel portion of the project was $41,125.00. In this regard, Complainant provided Respondent with a 50% down-payment in the amount of $20,560.00. b. Respondent completed the roof replacement work, which was apparently a separate contract, and the new roof leaked, causing water damage to specified areas of the home. Respondent also commenced work on the remodel project, which involved replacing the windows in the home. c. After Complainant observed the poor workmanship on the roof portion of the project, he elected to terminate the contract for the remodel portion of the project. Complainant testified that he agreed to pay Respondent for the window replacement portion of the remodel portion of the project and demanded that Respondent refund to him the remainder of the $20,560.00 down-payment. d. Complainant indicated that the window work was valued at $8,729.00, leaving a balance of $11,831.00. He further testified that Respondent agreed to refund the balance of the down-payment but has failed to do so. e. Complainant testified that the roof leak not only caused interior water damage to the home, but that the openings left on the roof by Respondent allowed air borne termites to attack the interior attic space. According to Complainant, he will be required to retain an exterminator to tent his home and exterminate the pests. This work has not yet been performed. Nevertheless, Complainant asserts that Respondent should be responsible for any future termite extermination costs that he will sustain. f. After filing the Complaints with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection and subsequent to concluding said inspection he issued a Corrective Work Order (CWO). g. Among other things, the CWO required Respondent to refund the excess money that it had received for the remodel portion of the contract. Complainant testified that all of the workmanship related items of the CWO have been completed by Respondent and the only item of the CWO that has not been resolved by Respondent is the issue of the outstanding $11, 831.00 refund.

3. Respondent failure to provide Complainant with a watertight roof on the roof replacement project is determined to constitute substandard and unacceptable workmanship. In addition, said poor work is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Based on the termination of the contract for the remodel project, Respondent is obligated to return the funds that it received for said project, other than the money applied to the window replacement project. Respondent’s failure to return $11, 831.00 to Complainant constitutes another wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws. In addition, Respondent’s failure to fully comply with every condition set forth on the above-described CWO constitutes a violation of the applicable charged section of the State’s Contracting laws, in regard to the need to comply with an official Agency directive.

5. By its failure to appear for the instant hearing, Respondent failed to present any matters in defense or mitigation.

6. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been revoked since February 15, 2007. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing revoked license status must be considered when determining appropriate penalties in this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class KB-01 license shall be revoked on the effective date of the Order entered in this matter.

Done this day, April 12, 2007.

______________________________________ Mark A. Silver 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 ___________________________

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

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