ALJDEC decisions subject to certification as final

07F-1253-ROC · Registrar of Contractors · 2008-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 2008 APPEARANCES: Complainant was represented by his attorney, Gregory Poulos and Respondent was represented by its attorney, Richard Gramlich. 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 on October 2, 2008, which set forth the issues to be determined at the Compliance 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, denial of access and/or unreasonable interference by Complainant would be determined at the instant hearing.

3. The original hearing in this matter resulted in a settlement agreement between the parties which provided:

a. Respondent will remove the swimming pool water-line tile and install a brown coat on the bond beam, using elastomeric mortar in said area, up to the pool deck. After completing this work, Respondent will then install new 6 x 6 tiles in said area, in a proper workmanlike manner. The parties further agree and understand that other than meeting workmanship standards in the installation of the new tile, Respondent will provide no warranty on said work or materials and Complainant agrees that after he accepts the initial installation on the new tile, he will not file any further Registrar of Contractors’ Complaints regarding said area of his pool. b. Respondent agreed to secure the pool light onto the wall of the pool. Complainant is responsible for the electrical wiring providing the necessary electricity to the light. c. Respondent will lower the pool skimmer. d. Respondent will complete all of the remedial work in this settlement agreement on or before Wednesday, November 21, 2007. e. Complainant will pay Respondent the sum of $800.00 upon completion of the above-described remedial work. f. Complainant agreed to withdraw the filed complaint.

4. Lorraine Herrell (“Herrell”) appeared at the hearing and presented testimony for Respondent. Herrell is Respondent’s office manager and she acted as the supervisor to accomplish the above-described remedial work. The salient portions of her testimony included the following:

a. Respondent had to locate the replacement pool tile and on or about November 5, 2008, she found out that the tiles were not in stock locally and would have to be ordered. b. On or about November 19, 2008 the skimmer was reset by Respondent. c. When Respondent commenced work on preparing the bond beam for the replacement tile, Respondent observed that there were certain issues with the bond beam, requiring more remedial work than had been originally contemplated. In order to accomplish the best job possible, Respondent elected to take out the existing mortar in said area all the way to the original pool shell. In this regard, it elected to add additional elastomeric mortar to build said area back-up to the pool plaster level. This procedure took more time, as the built-up areas each had to properly cure, before placing the next layer on top of the prior “float” coat. d. Although the deadline for completing the remedial work was November 21, 2008, Respondent was admittedly still working on the project on November 26, 2008. e. Complainant constantly bothered the workers on the project and on or about November 26, he advised that he was sick of Respondent and wanted Respondent off the property. f. On November 27, 2008, the tile had still not been installed. She met with Complainant on said date and he advised her that he did not believe the final finished work would be acceptable and thus, he told her not to install the tile or complete the remedial work. He further indicated that he was going to rescind the settlement agreement. Respondent stopped work on the project. While she made a phone call from the jobsite, Complainant was screaming in the background.

g. On or about December 11, 2008, she again contacted Complainant and asked to be allowed to return and complete the remedial work. Complainant refused to allow Respondent back on the project and advised her that he would not be done with Respondent until such time as he received a new swimming pool from Respondent.

5. The assigned inspector for the Registrar of Contractors appeared and presented testimony regarding his prehearing inspection, which included the following:

a. The pool light had not been secured. b. The lowering of the skimmer, although not tiled and thus, not finished, looked good to him. c. The Registrar of Contractors does not apply perfection standards when judging workmanship. d. The Registrar of Contractors does not tell a contractor how to get a job done.

6. Rex Richard appeared at the hearing and testified for Complainant as an expert witness regarding pool construction. He indicated that in his opinion elastomeric mortar should not be used as material to build-up a given area of the pool and that only a very thin layer of elastomeric should be used right before the tile and thinset are to be applied. He does not believe that Respondent’s planned procedure would have worked properly.

7. Complainant testified that from what he saw going on with Respondent’s remedial work, he became convinced that the finished product would not look good.

8. At the time of the settlement, both parties agreed that they understood the terms of the settlement agreement and their decision to settle was a voluntary decision. The parties were further advised, at the original hearing, that they would not be allowed to change their minds regarding the settlement agreement. Among other things, the parties agreed to the use of elastomeric mortar for the tile application. In light of the fact that Respondent was denied access to complete the project, it is difficult, if not impossible, to determine whether the final finished project would have been, in fact, successful.

9. The evidence of record supports a finding that Respondent was making a diligent effort to comply with the settlement agreement. Nevertheless, Respondent failed to complete all of the work on or before the agreed deadline date. Thus, although Respondent failed to fully comply with all of the terms and conditions of the prior Decision and Order entered in this matter, Complainant should have allowed Respondent to complete the work which was still in progress. Complainant’s actions in interfering with Respondent’s work on the project are not found to be reasonable.

10. Under all of the salient facts and circumstances presented herein, it is determined and held that Respondent should have one, and only one, final opportunity to complete the remedial work. Thus, Respondent shall make one final tender[1] of the necessary corrective work in order to properly complete the required remedial work on or before the effective date of the Order entered on Compliance hearing. In this regard, Complainant shall have one, and only one, final opportunity to allow access. Any continued conduct by Complainant, preventing reasonable access, will be viewed as tantamount to Respondent’s compliance with the Registrar’s Order on Compliance Hearing entered herein and result in a closing of this matter.

11. Based on the foregoing, some form of disciplinary sanction is found to be appropriate. However, Complainant’s failure to allow Respondent to complete the project within a reasonable period of time after the deadline date, is viewed as a matter in mitigation for the imposition of a disciplinary penalty in this matter.

CONCLUSIONS OF LAW

1. Respondent failed to fully 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 total compliance with the original Order of the Registrar and in accordance with the October 2, 2008 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against Respondent’s Class B-05 license.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order on Compliance hearing entered in this matter, that the Class B-05 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has completed all of the remedial work, set forth in the original settlement agreement, in a proper workmanlike manner. It is further recommended that if Respondent accomplishes the above-described corrective work or is denied reasonable access by Complainant, on or before the effective date of the Order on Compliance hearing, then the aforementioned license suspension shall not take place and in that event, this Citation (no. 07-1253), together with the Complaint upon which it is based, shall be closed. 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, November 13, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Respondent shall make the tender by both regular and certified mail to Complainant and allow Complainant, in the letter, five (5) days to respond.

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