ALJDEC decisions subject to certification as final

07F-2823-ROC-com · Registrar of Contractors · 2009-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2009 APPEARANCES: Complainants appeared on their own behalf and Respondent[1] appeared through its president, Perry Walker (“Walker”). 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 (“Registrar”) 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, which reflected a settlement agreement between the parties. In this regard, the Registrar issued a Notice of Compliance Hearing on March 23, 2009, which provided that the instant compliance hearing shall be conducted “in order to determine whether or not Respondents have fully complied with the terms of the settlement agreement.” In addition, the notice provided that “if it is determined that Respondents failed to comply with the terms of the settlement agreement, absent unreasonable interference or denial of access by Complainants, then Respondents’ Class B and B-03 licenses may be subject to the immediate imposition of discipline.”

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 would be determined at the instant hearing.

3. The settlement agreement between the parties provided, among other things, that Respondent would:

…perform further remedial work on the driveway cracks, which had been previously filled with a dark grey color caulking type material. Respondent will make the color closer to the color of the concrete, repair the cracks, and fill in the areas that have settled.

4. The following salient facts were adduced at the hearing and are important to note: a. The assigned inspector for the Registrar appeared at the hearing and provided testimony. He indicated that he returned to Complainants’ home for a compliance inspection and found that although Respondent had performed remedial work on the driveway cracks, the color of the crack filling material still does not match the adjacent concrete and the cracks have reopened. He determined that Respondent had not complied with the settlement agreement; b. Walker testified that repairs to concrete do not last indefinitely and after a certain period of time it becomes an issue of homeowner maintenance. He also asserted that it is impossible to match the color of existing concrete with a crack filling compound. The Registrar’s inspector testified that a better color match was possible; c. According to Walker, the patches looked acceptable when they were completed in 2008 but now over one year later, they have failed again. He also asserts that the concrete driveways throughout Complainants’ neighborhood evidences significant cracking; d. Evidence of record showed that the original contract between the parties called for Respondent to “repair cracks in the driveway and carport to match existing surface.” Complainants did not raise any compliance issues regarding Respondent’s remedial efforts on the carport. Therefore, the only area that is the subject of this Decision and Order on Compliance hearing is the concrete driveway and does not include that area of the concrete that was covered by a carport roof. e. Mark Jones testified that subsequent to Respondent’s completion of the remedial work on the cracks, the filler material began to once again settle and most of the filler material has come out of the cracks. In addition, he asserts that the new filler material applied by Respondent fails to adequately match the concrete; and f. Both Complainants estimate that the driveway constitutes approximately 80% of the concrete work set forth in the applicable provision of the contract for concrete crack repairs in the driveway and carport. The applicable contract between the parties shows that the charge to Complainants for repairing the concrete cracks was $426.00.

5. The evidence of record is found to be sufficient to support a finding that although Respondent made a concerted effort to resolve all of the issues set forth for correction in the Registrar’s Order and settlement agreement, compliance was not achieved. Respondent voluntarily entered into the original contact to repair the concrete cracks and also agreed to the above-described terms of the settlement. Under these facts and circumstances, Respondent is now estopped to complain that it cannot accomplish a workmanlike result on the driveway crack repairs.

6. Notwithstanding the finding of non-compliance by Respondent, Respondent should be allowed one, and only one, final opportunity to resolve the issue of the concrete crack repairs.[2]

CONCLUSIONS OF LAW

1. Respondent failed to 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 terms of the settlement agreement set forth in the prior Order of the Registrar and in accordance with the Notice of Compliance Hearing issued in this matter, it is determined that disciplinary sanctions should be imposed against Respondent’s licenses in order to assure future compliance.

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 B- and Class B-03 licenses of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has complied with one of the following conditions: 1. Properly repaired the cracks in the concrete driveway, in a manner that will last for a reasonable length of time into the future and provide an appropriate color match with the adjacent concrete surfaces; or 2. Concludes other mutually acceptable arrangements with Complainants.

It is further recommended that if Respondent complies with one of the above-provided conditions on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. 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, June 10, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] For the purpose of this Decision and Order the term Respondent shall be used to refer to the two licenses. [2] Although Respondent is free to select the manner of performing the remedial work, Respondent is on notice that any contractor that elects to accomplish repair work in a less expensive or less extensive manner than other options, performs said work at its peril to accomplish an effective and adequate repair.

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