ALJDEC decisions subject to certification as final

07F-A0621-ROC · Registrar of Contractors · 2009-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2009 APPEARANCES: Complainant appeared on her own behalf and Respondent failed to appear. 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 purchased new home construction from Respondent. Complainant claims certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Uncontroverted evidence of record established that the concrete work placed on Complainant’s property is indicative of substandard and unacceptable workmanship, as manifested by specified areas that reveal compound cracking and some type of staining on the surface. These defects in the concrete are also viewed as a wrongful act, within the meaning of the applicable charged sections of the State’s Contracting laws.

3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. In fact, the assigned Agency inspector appeared at the hearing and testified that he also conducted a pre-hearing inspection, wherein he determined that some of the cracks had actually gotten worse.

4. The subcontractor that placed the concrete on Complainant’s project appeared at the instant hearing and presented testimony. He indicated that although he had a masonry license at the time he performed the concrete work on Complainant’s project, his license did not allow him to place concrete. He further indicated that Respondent was aware that he was not properly licensed to do concrete work. In light of the above- described deficiencies in the concrete, Respondent’s failure to use a properly licensed contractor for the concrete work is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

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

6. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been revoked since September 26, 2008. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders. Moreover, Respondent’s existing revoked license status must be considered when determining appropriate penalties in this case.

7. 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 eleven (11) open Complaints, nine (9) actions of discipline and six (6) matters that were resolved/settled/withdrawn . Therefore, Respondent’s prior record is properly deemed to be horrible and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Undisputed evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on the effective date of the Order entered in this matter. 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, January 26, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Armando Contreras 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