ALJDEC decisions subject to certification as final

07F-2060-ROC-rhg · Registrar of Contractors · 2008-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 14, 2008 and August 28, 2008. APPEARANCES: On August 14, 2008, Patrick Manning and Melissa Murray did not timely for the rehearing. Ms. Murray did appear until after the adjournment of the rehearing Stewart Greenfield Designs, LLC was represented by its member and qualifying party, Steward Greenfield. On August 28, 2008, Patrick Manning and Melissa Murray appeared for the further rehearing. Mr. Greenfield did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance:

FINDINGS OF FACT

1. Steward Greenfield Designs, LLC (“Respondent”) is the holder of License No. 221644, a Class B-03 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Pursuant to the Notice of Limited Rehearing issued by the Registrar, this matter came on for limited rehearing on August 14, 2008. In the underlying Administrative Law Judge Decision, as adopted by the Registrar, Respondent was required to timely complete its original scope of work on Complainants’ project in order to avoid the suspension of its contracting license number. Respondent filed a motion for rehearing claiming that it could not perform the work necessary to avoid the suspension of its contracting license because Complainants had the work performed by other licensed contractors. The issue on the limited rehearing is whether or not Complainants had others complete Respondent’s scope of work prior to the original hearing in this matter. 3. On August 14, 2008, the Administrative Law Judge conducted the Limited Rehearing. The commencement of the Limited Rehearing was delayed 15 minutes to allow for the later arrival of Complainants. After the delay, the Administrative Law Judge conducted the Limited Rehearing in Complainants’ absence. The Limited Rehearing concluded on that date. Unbeknownst to the Administrative Law Judge, Complainant Murray had telephoned the Office of Administrative Hearings during the delay to advise that she had missed an exit on the highway and would be late. She later appeared after the Limited Rehearing had been concluded and Respondent’s representative had left the building. 4. Later on August 14, 2008, the Administrative Law Judge issued an Order Reopening the Record and Setting Matter for Further Hearing. That Order was sent to the parties at their addresses of record with the Office of Administrative Hearings. 5. On August 28, 2008, the commencement of the further Limited Rehearing was delayed for 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay the Administrative Law Judge conducted the further Limited Rehearing in Respondent’s absence. 6. There is credible evidence that Complainants did hire other subcontractors to complete Respondent’s scope of work after it abandoned the project. As a result of Respondent’s abandonment of the project, Complainants were within their rights to complete the project in order mitigate the damages caused by Respondent. 7. Complainants had paid Respondent for the work to be completed. 8. Complainants paid other subcontractors the additional cost of $8,292.00 to complete Respondent’s scope of work. 9. The following workmanship performed by Respondent remains below minimum workmanship standards: sheetrock damaged by the atrium water leak; French doors not properly sealed; deficient electrical work in the living room; and cabinet issues. Complainants have not had those items repaired because they lack the monetary funds to do so. 10. A review of the Registrar’s official records reveals that Respondent’s License No. 221164 was suspended by operation of law for nonrenewal on August 1, 2008.

CONCLUSION OF LAW

1. The Conclusions of Law contained in the Administrative Law Judge Decision in Docket No. 07F-2060-ROC, as adopted by the Registrar, are incorporated herein by reference. 2. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license by operation of law for nonrenewal does not deprive the Registrar of jurisdiction to impose discipline upon Respondent’s license in this matter. 3. Pursuant to A.A.C. R4-9-120(D), the Registrar may modify its prior decision in this matter. Since the prior Order required Respondent to complete its scope of work as a condition to avoid the suspension of its license and such work had been completed by Complainants using other subcontractors following Respondent’s abandonment, the disciplinary penalty to be imposed upon Respondent should be modified. 4. As a result of Respondent’s license being suspended by operation of law, Respondent may not perform any additional remedial repairs in this matter at this time. 5. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge concludes that Complainants have established an entitlement to restitution from Respondent in the amount of $8,292.00, which Complainants had to pay to complete Respondent’s scope of work in addition to the funds previously paid to Respondent for such scope of work.

RECOMMENDED ORDER ON LIMITED REHEARING

Respondent’s License No. 221644 shall be revoked on the effective date of the final Order entered in Case No. 07-2060. If Respondent pays Complainants restitution in the amount of $8,292.00 on or before the effective date of the final Order entered in Case No. 07-2060, then the above-provided license revocation shall not take place, but instead that Respondent’s license shall be placed on suspension for ten days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the final Order entered in Case No. 07-2060. 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 will be 45 days from the date of that certification. Done this day, September 16, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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