ALJDEC decisions subject to certification as final

07F-G1196W-ROC · Registrar of Contractors · 2008-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2008. APPEARANCES: Robert and Ann Stephens appeared personally. PolyRock, Inc. was represented by its president and qualifying party, Stephen Hilton. 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:

FINDINGS OF FACT

1. PolyRock, Inc. (“Respondent”) is the holder of License No. 162118, a Class K-09 contracting license, and License No. 137145, a Class K-05 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about July 18, 2005, Respondent entered into a written contract to perform work at the residence of Ann and Robert Stephens (“Complainants”). 3. During negotiations Complainants expressed their concern about their floor cracking after the work was performed. They agreed to pay $5.00 a linear foot for crack repairs. 4. On or about August 26, 2005, Respondent completed its scope of work. Complainants paid Respondent the final payment on that date. 5. About 8 months after Respondent completed its scope of work, excessive cracking of Complainant’s floor occurred. Complainants’ repeated telephone calls to Respondent were not returned. 6. Complainants filed a written Complaint with the Registrar concerning the cracking of their floor. The Complaint was designated Case Nos. G1196-ROC, which applied to License No. 162118, and G07-1196W, which applied to License No. 137145. 7. In response to the filed Complaint, the Registrar’s assigned inspector, Jim Hennessy, performed a jobsite inspection on March 2, 2007 to view Complainants’ floor. As a result of that inspection, Inspector Hennessy issued a Corrective Work Order directing Respondent to timely perform remedial work to the cracking floor. 8. Respondent failed to comply with the Registrar’s written directive. 9. The Registrar referred Case Nos. G07-1196 and G07-1196W to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. On July 18, 2008, Inspector Hennessy performed a pre-hearing jobsite inspection. He testified that no repairs have been performed. 11. Respondent’s president and qualifying party, Steven Hilton, testified that Respondent had sold its dealership to Stone Impressions, who he claims was suppose to perform Respondent’s warranty work. Mr. Hilton did not present any credible evidence to support that testimony. However, any such sale does not relieve Respondent of its responsibilities to Complainants. 12. Respondent’s deficient workmanship and failure to comply with the Registrar’s Corrective Work Order are wrongful acts that substantially injured Complainants. 13. A review of the Registrar’s official records reflects that Respondent’s License No. 137145 was revoked on January 9, 2008 in Case No. 07-1103. The license was revoked a second time on January 10, 2008 in Case No. 07-0550. 14. Respondent’s License No. 162118 was revoked on January 9, 2008 in Case No. 07-1103W. The license was revoked a second time on January 10, 2008 in Case No. 07-0550W. 15. As a result of the revocations of Respondent’s two contracting license, it is not permitted to perform any remedial repairs in these matters.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the prior revocations of Respondent’s contracting licenses does not deprive the Registrar of jurisdiction to initiate disciplinary proceedings against Respondent and to impose additional disciplinary penalties for proven statutory and regulatory violations by Respondent. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C.2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s Corrective Work Order requiring it to timely perform remedial repairs to its deficient workmanship. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C.R4-9-108, as cited in the Citation and Complaint issued by the Registrar. Respondent’s workmanship failed to meet minimum workmanship standards. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship and failure to comply with the Registrar’s written directive to correct its deficient workmanship resulted in substantial injury to Complainants. 7. Pursuant to A.R.S. § 32-1154(D), the imposition of a civil penalty due to Respondent’s failure to comply with the Registrar’s Corrective Work Order is appropriate in this matter.

RECOMMENDED ORDER

Respondent’s License Nos.162118 and 137145 shall be revoked on the effective date of the Order entered in Case Nos. G07-1196 and G07-1196W. In addition to the above-provided license revocations, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure of Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case Nos. G07-1196 and G07-1196W shall result in the automatic revocation of Respondent’s License No. 162118 and 137145, effective on such deadline date. No future license(s) shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, August 4, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Fidelis V. Garcia, 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