ALJDEC decisions subject to certification as final

06F-S0205-ROC · Registrar of Contractors · 2007-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Biagio Gingo. The Respondent appeared through its attorney, Jana Flagler. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommendation are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. The matters were consolidated for hearing since all three matters involved the same parties and witnesses. 3. All of these matters are residential matters where the Respondent performed construction work for the Complainant. 4. The residence at 2632 Brewer Dr., Sierra Vista, Arizona, (06F-S0190-ROC) is the Complainant’s personal residence. 5. The residence at 3411 Snead Drive, Sierra Vista, Arizona (06F-S0205-ROC) was sold by the Complainant after the Complaint was filed. 6. The residence at 1739 San Gabriel, Sierra Vista, Arizona, was sold by the Complainant before the Complaint was filed. 7. The Complainant was dissatisfied with the Respondent’s workmanship, its failure to supply the Complainant with written Contracts that complied with statutory requirements, and its failure to correct its work to the Complainant’s satisfaction despite repeated demands that it do so. 8. When the Respondent failed to comply with the Complainant’s demands the Complainant filed the three formal Complaints at issue, against the Respondent, with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaints, an assigned Agency Inspector conducted several on-site inspections and issued a written Corrective Work Orders directing the Respondent to perform designated corrective work on the Complainant’s residence located at 2632 Brewer Drive and the residence located 3411 Snead Drive. 10. The Corrective Work Order issued for the Complainant’s personal residence located at 2632 Brewer Drive, provides in pertinent part, as follows: “Contractor to correct, repair or replace the following by appropriate means: 1a. Any and all unlevel concrete. 1b. Any and all cracks that do not meet the standards. 2a. Any and all flashing. 2b. Different color roof ties. 4. Install tempered glass. 5. Doors to operate properly. 6. Yard lights to work properly. 7. Addition stucco to existing. 8. Permit to be displayed. 9. Any and all paint bubbles. Addendum. 1. Secure wood floor.” 11. The Corrective Work Order issued for the residence located at 3411 Snead Drive provides, in pertinent part, as follows; “Contractor to determine cause and correct the following: Insufficient air to the addition.” The Addendum to the Corrective Work Order provides, in pertinent part, as follows: “Addendum to the Corrective Work Order sent on 06/22/06. Contractor to correct or replace the following by appropriate means: 1. Provide contract. 2. Install correct color carpet.” 12. The Complaint for the residence located at 1739 San Gabriel was limited to the issue of “No written contract.” No Corrective Work Order was issued. 13. There was no dispute that the directed corrective action was not performed. 14. The credible evidence of record is insufficient and fails to support a finding that there was an unreasonable denial of access by the Complainant. 15. During the course of construction and the filing of the three Complaints at issue the Complainant’s wife and the Respondent’s Qualifying Party’s wife have developed an extremely antagonistic personal relationship which indicates the possibility of a physical confrontation between the two women. 16. There is currently a Restraining Order issued which prevents contact between the Complainant’s wife and the Respondent’s Qualifying Party’s wife. However, credible testimony and evidence, presented at hearing, established the personal relationship between the Complainant and the licensed Respondent are professional and the parties are fully capable of scheduling and performing any ordered corrective action. 17. The Complainant asserts that the Respondent failed to provide written Contracts for any of the three construction projects. The Respondent asserts that it provided written proposals for all three of the construction projects. 18. Credible testimony and evidence, presented at hearing, established the written proposals allegedly furnished by the Respondent fail to comply with the applicable provisions of A.R.S. §32-1158. 19. There was no dispute that the residence located at 3411 Snead Drive has been sold to a third party, the Complainant no longer has the ability to grant access to the property, and there is no longer a possibility for the Respondent to perform corrective action at the residence located on 3411 Snead Drive. 20. The Respondent’s dispute with the Complainant’s claim for monetary damages for the residence located at 3411 Snead Drive is found to be in good faith. The parties’ dispute regarding whether or not the Complainant is entitled to any type of monetary compensation for the Respondent’s construction work at 3411 Snead Drive is found to be a good faith monetary dispute which should be resolved, if at all, in a civil court of competent jurisdiction. 21. Although the parties have a difficult personal relationship 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 its work. 22. In order to bring the final work product up to appropriate industry standards, Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 23. The Respondent shall fully comply with the terms and conditions of the Corrective Work Order issued in Docket Number 06F-S0190-ROC (S06-0190). 24. The Respondent shall ensure that any subcontractors it elects to utilize in the performance of the directed corrective work are properly licensed and are acceptable to the Complainant. 25. The Respondent’s actions, in failing to utilize written contracts that comply with applicable statutory requirements, are found to constitute violations of the charged provisions of A.R.S. §32-1154A 13: Namely A.R.S. §32-1158 (A). 26. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (23) and (3); namely, Rule R4-9- 108 and A.R.S. §32-1154 (A) 13: namely, A.R.S. §32-1158 (A). 2. A.R.S. §32-1158 provides, in pertinent part, as follows: “A. From and after December 31, 1992, any contract in an amount of more than seven hundred fifty dollars and less than one hundred fifty thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor’s business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of the completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. B. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.”

RECOMMENDation In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in for the Complainant’s personal residence issued in Case Number S06-0190-ROC. It is further recommended, if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place. Instead the Respondent’s Class B- License shall be placed on disciplinary probation for a period of ninety (90) days. It is further recommended the Respondent be formally admonished it must comply with the applicable provisions of A.R.S. §32-1158 and any future violations of this statutory provision may result in the suspension or revocation of the Respondent’s license. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, January 16, 2007.

______________________________________ M. Douglas 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 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488