ALJDEC decisions subject to certification as final

06F-G0213-ROC-com · Registrar of Contractors · 2007-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2007

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Hossein Darmani (“Darmani”). 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, 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 January 5, 2006 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 original filed Complaint in this matter resulted in a default Decision and Order, based on Respondent’s failure to file a time answer to the Citation issued by the Registrar of Contractors. The Registrar’s Order of January 5, 2006 provided that Respondent’s K-08 license would be suspended unless Respondent “appropriately rectified the items involved and detailed in the Complaint and the Agency’s directive.” The Agency directive referred to in the Registrar’s Order was a September 16, 2005 Corrective Work Order (“CWO”) prepared by the assigned Agency inspector on the case. The CWO gave Respondent fifteen (15) days to fix the cupping in the wood-like flooring installed in Complainant’s home.

4. Complainant testified that Respondent never appeared at his home, subsequent to issuance of the aforementioned Decision and Order of the Registrar. According to Complainant, the floor in question was installed in March 2004 and Respondent has made approximately five (5) attempts to fix the flooring problem since the time that the floor was initially installed. Notwithstanding Respondent’s past attempts to resolve the cupping issue, Complainant indicated that the floor still shows cupping in specified areas. In addition, a number of the “T” moldings are also loose.

5. The current assigned inspector for the Registrar of Contractors, appeared at the instant compliance hearing and presented testimony, regarding his findings on a compliance inspection. According to the inspector, he found cupping in the area of the living room and family/dining room areas of the home. He also observed some gaps in “butt” joints.

6. Darmani testified that he had sent someone to Complainant’s home, prior to the issuance of the original Decision and Order in this matter, and assumed that all corrective work had been completed. He also contends that the issues raised on the compliance hearing were the first time he heard that the floor had not been corrected.

7. Darmani contends that he tested the floor at the compliance inspection with a moisture meter and found that there was excessive moisture in the home, which could be causing the ongoing cupping problems with the floor. Although this fact may help explain the continuing cupping problem, Respondent was advised that the instant matter was a compliance hearing and the time to assert defenses to the deficiency in his work had long since passed. Moreover, in this regard, the assigned compliance inspector testified that when a contractor installs new wood-like flooring in a home, he is deemed to have accepted the surface and conditions in said home as being adequate to support a workmanlike result.

8. Based on the foregoing, it is determined and held that Respondent failed to comply with the terms and conditions of the previously entered Decision and Order in this matter.

9. By way of aggravation, Complainant testified that he has been dealing with the construction problems on his new home since March 2004 and that Respondent has made five (5) failed attempts to correct the problem. Thus, he is tired of having to deal with Respondent on these unresolved issues.

10. A homeowner need not suffer through a seemingly endless series of inadequate or ineffective repair attempts by a contractor. The instant record failed to establish any grounds to justify a departure from a long- standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. However, Respondent is hereby placed on notice that it will have one, and only one, final opportunity to correct the ongoing problems with the floor installed in Complainant’s home.

11. Based on a standing motion filed with Registrar of Contractors at the Office of Administrative Hearings, 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 the absence of any other open complaints or other matters, which resulted in any disciplinary sanctions against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this compliance hearing.

CONCLUSIONS OF LAW

1. Respondent failed to 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 compliance with the January 5, 2006 Order of the Registrar and in accordance with the December 5, 2006 Notice of Compliance Hearing, it is determined that a modification of the disciplinary sanctions imposed in the January 5, 2006 Order is appropriate and warranted.

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 K-08 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on all remaining cupping issues in the floor, the loose “T” moldings, and any excessive gaps in the “butt” joints. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class K-08 license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration 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 $1,500.00, 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, January 22, 2007

______________________________________ Mark A. Silver 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 ___________________________

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