ALJDEC decisions subject to certification as final

06F-Y0229-ROC-RES · Registrar of Contractors · 2007-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 5, 2007, at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Mike Blanco. 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 Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class K-21 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed landscaping work on the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to comply with the terms of the parties’ Construction Agreement. 4. The Complainant then filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: “Complaint #1: Dead palm tree. Contractor to correct by appropriate method. Complaint #2: Different plants installed than was contracted for. No action required of contractor. This Inspector’s opinion that homeowner and contractor have an agreement for the foliage planted. Complaint #3: Gate installed at driveway is not the gate contracted for: Contractor to correct by appropriate method.” 7. The Workmanship Standards for Licensed Contractors February 2007, page 22, provides, in pertinent part, as follows: “3. PD Plants dying. AT Plants should be installed in healthy living condition. CR Contractor should replace affected plants within warranty period unless condition is caused by owner.” 8. Credible testimony and evidence, presented at hearing, established the palm tree had a ninety (90) day warranty and the Complaint at issue was filed after the ninety day warranty had expired. 9. There was no credible evidence that the Complainant gave the Respondent any notice of the problem with the palm tree or that the palm tree was not installed in a healthy and living condition prior to the filing of the Complaint. No corrective action by the Respondent is found to be necessary. 10. Credible testimony and evidence, presented at hearing established the gate installed in the Complainant’s driveway does not comply with parties’ Construction Agreement. The Respondent shall properly remove the gate in the Complainant’s driveway and properly replace it with a six (6) foot high privacy gate that complies with the parties’ Agreement. 11. There was no credible evidence of any wrongful or fraudulent act by the Respondent. 12. 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) (2) (Departure from or disregard of plans or specifications.)

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class K-21 License be suspended until the Registrar of Contractors receives proof that the Respondent has properly removed the gate in the Complainant’s driveway and properly replaced it with a six (6) foot high privacy gate as required by the parties’ Agreement. It is further recommended that 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 and this matter be closed. 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, June 8, 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