ALJDEC decisions subject to certification as final

06F-H0193-ROC · Registrar of Contractors · 2007-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2007 APPEARANCES: Complainants appeared on their own behalf 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, Complainants purchased new home construction from Respondent. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainants stated that the only remaining issues on their Complaint involved the cracks on driveway, under the portico, and in the garage floor.

3. Uncontroverted evidence of record established that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Respondent has performed prior remedial work on the concrete cracking in the garage. Although the cracks have been filled, there remains an unacceptable and highly visible painted line on the cracks, creating an aesthetically unacceptable result. In addition, there is one crack in the garage which has not been repaired. b. The repair work on the concrete under the portico is also aesthetically unacceptable, due to highly visible repaired cracks. c. Respondent attempted to repair a crack on the driveway and subsequent to completing the repair, the repair material has cracked open or chipped-out. In addition, there remains another crack that requires repair and Respondent failed to make any effort to repair same.

4. The assigned inspector for the Registrar of Contractors appeared at the instant hearing and presented testimony regarding his findings. Taking notice of the Registrar of Contractors’ file in this matter, it was shown that the inspector issued a Corrective Work Order (“CWO”) on November 21, 2005, which required that Respondent complete repairs on the concrete work, along with other remedial work. The file in this matter further showed that on or about September 20 2006 the inspector conducted a compliance inspection, wherein he determined that the repairs that Respondent performed on the driveway and garage floor had failed.

5. Based on the evidence considered at the hearing, it is determined and held that Respondent failed to comply with all of the terms and conditions of the above-described CWO.

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

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, 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 prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show that two matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is properly deemed to be fair and thus, viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of 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, commencing on the effective date of the Order entered in this matter, that the Class KB-01 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 3(a) through 3(c), above. 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 KB-01 license be placed on a period of 180 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 Respondent pay the sum of $175.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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, April 2, 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