ALJDEC decisions subject to certification as final

07F-2051-ROC · Registrar of Contractors · 2008-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2008 APPEARANCES: William DeMarco (“DeMarco”) appeared on his own behalf and Super Bonder Enterprises appeared through Curtis Robinson (“Robinson”).

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. DeMarco is the owner of the home in question. He asked Robinson, who apparently has experience in swimming pool construction matters, for a recommendation as to what should be done regarding the deteriorating plaster in the swimming pool. Robinson advised DeMarco that the pool needed to be re-plastered and recommended Respondent for the job.

2. DeMarco hired Respondent to re-plaster the swimming pool. Uncontroverted evidence of record showed that there was staining in the new plaster, which was visible shortly after the start-up of the re-plastered pool. DeMarco contacted Respondent regarding the stains in his new plaster and Respondent returned to the jobsite and performed an acid wash on the pool plaster.

3. Notwithstanding the above-described acid wash procedure, the stains remained in the plaster and remain to this day. The staining of the plaster was shown to be extensive throughout the pool surfaces.

4. Robinson testified that he observed the plaster work, as it was being performed by Respondent and he found that they failed to adequately or properly trowel the new plaster.

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

6. The uncontroverted evidence of record established that Respondent’s work on the pool plaster project was indicative of substandard and unacceptable workmanship, as manifested by the extensive staining that first became visible after the clouding of the water cleared up, subsequent to the refilling of the pool with water. The staining of the pool is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

7. DeMarco testified that he paid Respondent for the new plaster job and the cost for said work was $2,628.62.

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, a review of said record does reveal two (2) prior matters that were either withdrawn, settled, or otherwise resolved. 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

Respondent violated the provisions of A.R.S. § 32-1154A (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 C-36R license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to remove the stains from the pool plaster. 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 C-36R 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 any continuation or 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 for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation 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, February 6, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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