ALJDEC decisions subject to certification as final

07F-2005-ROC · Registrar of Contractors · 2008-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2008 APPEARANCES: Complainant appeared on his own behalf. Respondent failed to appear.[1] 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, Complainant retained Respondent to install a block wall on his property and later retained Respondent to place specified concrete on the property. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. Complainant testified that he has no issue with the work performed on the block wall and that all of his issues are in regard to the concrete work. According to Complainant, the concrete reveals excessive cracks, the concrete is rough in certain areas and water ponds on the patio. When Respondent failed to correct these deficiencies, Complainant filed a formal Complaint with the Registrar of Contractors.

3. After the Complaint was received by the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors, who conducted a jobsite inspection to investigate the allegations of the Complaint. The inspector appeared at the instant hearing and the salient portions of his testimony included the following:

a. Respondent had placed two sidewalks that went around the side of the house and into the rear yard. He found cracks in both sidewalks which were excessive in dimension, thereby beyond acceptable allowances applied by the Registrar of Contractors for concrete cracks. b. He determined that water ponds excessively on the rear yard patio. c. Control joints were poorly made, as manifested by jagged sides and concrete that had apparently been pulled out during the “striking” process. d. There are visible trowel marks in the concrete, along with areas where the concrete is very rough. e. Concrete splatter is present on the walls of the home. f. There are no expansion strips placed between the edge of the sidewalks and the house or patio walls. g. The concrete work performed by Respondent was beyond the scope of Respondent’s license.

4. According to the inspector, but for the fact that the parties reached a settlement agreement at the time of the inspection, he would have issued a Corrective Work Order, based on his findings at the jobsite inspection,. Apparently, Respondent had agreed that the concrete work was substandard and therefore, offered to pay Complainant the total sum of $1,500.00, which represented a full refund of the amount paid by Complainant for the concrete aspect of the project. Respondent was to pay the money, via a payment plan that provided for two (2) equal payments of $750.00, with the last payment being due on or before June 2007. As of the date of the instant hearing, Respondent has paid nothing on the agreement.

5. The evidence presented by the Registrar of Contractors inspector was found to be sufficient to support a finding of not only poor and substandard workmanship by Respondent on the concrete, but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. In addition, the fact that Respondent performed the concrete work, without having the proper license, is a matter in very serious aggravation for any disciplinary penalties to be imposed herein.

6. A review of the applicable contract between the parties, shows that the date of said document was March 2, 2005. On March 2, 2005 Respondent’s license was on an administrative suspension for failure to renew. Thus, Respondent was contracting, at that time, without an active license.

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

8. 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 one (1) matter was resolved or closed subsequent to issuance of a Corrective Work Order or Citation. In addition, there are currently three open Complaints on the record. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is 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

1. Respondent violated the provisions of A.R.S. § 32-1154A (18), (17), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays to Complainant the lowest of three (3) bids from licensed contractors to replace the substandard concrete work, on or before the extended deadline date of twenty (20) days after the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class K-31 license shall be placed on active suspension for a period of l0 days followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, by way of a condition precedent for any obligation of Respondent to pay for the remedial work on the concrete, that Complainant shall provide Respondent with the aforementioned three (3) bids for the remedial work on or before the effective date of the Order entered in this matter. The bids shall be submitted to Respondent via certified mail. In the event that Complainant fails to provide the required bids within the stated deadline date then Respondent’s only obligation, to avoid the revocation of its license, shall be to pay to Complainant the original settlement amount of $1,500.00 on or before the above mentioned extended deadline date. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative penalties, that as an express condition for the next 2 renewals of Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the Registrar then in effect, Respondent shall be required to pay an additional $150.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. § 32- 1132B. Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that any restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. 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, September 24, 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] Although Respondent failed to appear at the hearing, he sent his brother, Hector Sandoval (“Hector”), to represent him at the hearing. Since Hector is not on the license and is not an attorney, he was not allowed to represent Respondent, which is a sole proprietor licensee.

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