ALJDEC decisions subject to certification as final

06F-H0118-ROC-com · Registrar of Contractors · 2007-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2007

APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, Elizabeth Sindik. 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 June 27, 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 hearing in this matter resulted in a settlement agreement reached between the parties. The terms of said settlement were read onto the record during the original hearing and the essential terms were also incorporated into the Order issued by the Registrar on June 27, 2006. Paragraph no. 2 of the Findings of Fact in said Decision and Order provided that Respondent was to accomplish appropriate and effective remedial work to four remaining items on the Complaint; namely to install capping on the parapet wall of the roof in the same color as the existing parapet color, to apply Behr stain to all exposed wood on the front and back porches, to apply an epoxy coating surface to the concrete driveway, and to replace the weather-stripping on the door from the bedroom to the patio. In addition, the Order provided that all remedial work was to be completed within ten (10) business days from June 9, 2006.

4. Complainant testified that none of the required remedial work has been completed. According to Complainant he heard nothing at all from Respondent during the ten (10) day period during which the work was to be performed. Later he heard something from Respondent, indicating that he did not have the funds to pay for the remedial work.

5. Complainant admitted that sometime after the ten (10) day deadline was over, Respondent and a roofer came out to his home to look at the roof in regard to installing the required capping on the parapet wall. According to Complainant, at this time neither Respondent, nor the roofer, had a valid Registrar of Contractors’ license.

6. The assigned inspector for the Registrar of Contractors appeared at the instant compliance hearing and testified regarding his findings on a compliance inspection. He confirmed that absolutely no work had been performed by Respondent, contrary to the requirements of the settlement agreement which had been incorporated into the Registrar’s Order of June 27, 2006.

7. Dave Garringer (“Dave”) testified for Respondent. According to Dave, he sent a roofer out to Complainant’s home to look at what needed to be done and the roofer offered to install some type of elastomeric cap, which Complainant rejected. It should be noted that the assigned Registrar of Contractors’ inspector testified that the agreement called for a metal cap, not an elastomeric coating.

8. Dave claims that he sent a painter to the home to deal with the stain issue. According to Dave, the painter and Complainant got into some type of dispute over the type of stain to be applied and the painter refused to perform the stain work.

9. In regard to the epoxy coating on the driveway, Dave testified that he contacted someone to perform this work. However, this individual wanted ½ of his fee as a down payment and Dave indicated that he did not have the money to pay this fee.

10. In regard to the weather-stripping issue, Dave testified that instead of performing the required work, he filed a Registrar of Contractors’ Complaint against the subcontractor that did the initial install and is still waiting for a final ruling by the Registrar on said Complaint.

11. The responsibility to comply with the terms and conditions of the above-described settlement agreement was on Respondent, not Respondent’s subcontractors. Deficiencies or substandard workmanship must be corrected notwithstanding the unwillingness or inability of a subcontractor to perform appropriate and necessary remedial work. Complainant contracted with Respondent, not its subcontractors, and thus the “buck stops” on Respondent’s desk. It is of no concern to Complainant that Respondent is having problems forcing a subcontractor to repair the required workmanship deficiencies or to find a subcontractor willing to perform the work in accordance with the requirement of the settlement agreement incorporated in the Registrar’s Order.

12. 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.

13. By way of aggravation, Complainant testified that he has been dealing with the construction problems on his new home since April 2003 and he is tired of having to deal with Respondent on these unresolved issues.

14. A homeowner need not suffer through a seemingly endless series of legal battles with a contractor. There must be a finality to proceedings and for Respondent in this matter, that day has arrived.

15. Based on the foregoing and in accordance with the Notice of Hearing issued in this matter, a disciplinary sanction against Respondent’s license is found to be appropriate.

. Based on a standing motion filed with the 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 numerous prior disciplinary sanctions that had been imposed against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this compliance hearing.

17. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been revoked since September 7, 2006. Such license 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

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 June 27, 2006 Order of the Registrar and in accordance with the December 5, 2006 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 that Respondent’s Class B license shall be revoked on the effective date of the Order on compliance hearing entered in this matter. 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 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 ___________________________

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