ALJDEC decisions subject to certification as final

07F-G1978W-ROC · Registrar of Contractors · 2008-05-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2008 APPEARANCES: Complainant appeared on his 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. At the outset of the scheduled hearing, Complainant advised this Tribunal of a problem with the Notice of Hearing issued in this matter. Complainant presented the following facts:

a. This matter was scheduled for a prehearing inspection on Thursday May 8, 2008 by the assigned Registrar of Contractors’ inspector. Complainant was present for the inspection, as was a representative of Respondent. b. After thirty (30) minutes past the scheduled start time for the prehearing inspection, the assigned Agency inspector had not appeared. Becoming concerned, Complainant called the Registrar of Contractors via speakerphone, so that Respondent’s representative could hear the phone call. c. The parties were advised that the inspector was ill and would be unable to appear for the inspection. d. At some point, Complainant asked about the upcoming hearing date. He was speaking to Lisa, an employee of the Registrar of Contractors. When Lisa advised the parties that the hearing was set for the following Monday (May 12, 2008), both parties indicated that they had not received any notice of said hearing date. e. According to Complainant, Lisa asked for their fax numbers and Respondent’s representative gave her Respondent’s fax number. Complainant requested that his notice be mailed to him. f. Complainant indicated that he received his copy of the Notice of Hearing on May 10, 2008. However, when he received the verbal notice from Lisa on May 8, 2008, he immediately took steps to make himself available and prepared for the scheduled hearing.

2. The Registrar of Contractors’ file in this matter shows that the Notice of Hearing, setting May 12, 2008 as the hearing date, was duly mailed to the parties on April 8, 2008, via certified mail.

3. Under all of the facts and circumstances, it is determined that Respondent had actual notice, albeit possibly belated, of the hearing date and its failure to appear for the hearing or make a timely request for a continuance was not excusable. Thus, the hearing proceeded, without Respondent.

4. Respondent was the window installation subcontractor on new home construction purchased by Complainant. Complainant alleges specified deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

5. Uncontroverted testimony from Complainant established that shortly after Complainant moved into his new home, he was opening one of his windows and, through no fault of his own, the window came out of the track and smacked him on the head. Although no serious injury occurred, as a result of the window striking Complainant’s head, he did sustain a temporary headache.

6. Complainant reported the above-described window incident to his general contractor, who brought Respondent out to the jobsite to investigate the problem. According to Complainant, at the time of the meeting, one of Respondent’s representatives advised him that Respondent knew that three (3) of the windows were installed in a defective manner.

7. Soon after the meeting to discuss the problem with the one window, Respondent performed some type of remedial work on all of the three (3) windows in question. Complainant testified that he has not experienced any further problems with his windows, subsequent to the remedial work that was accomplished by Respondent and therefore, assumes that the defective installation issues have been properly resolved by Respondent.

8. Complainant’s concern is that if Respondent knew there were three (3) defective windows in his home, he should have been warned by Respondent of the possibly dangerous situation that these windows posed to not only himself, but also his family.

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

10. The uncontroverted evidence of record established that Respondent performed substandard and unacceptable workmanship on the window installation in Complainant’s home, in violation of the workmanship section of the State’s Contracting laws. The fact that Complainant received a temporary headache from the window striking his head, is not found to be a substantial injury within the meaning of A.R.S. §32-1154A (7).

11. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s C-65 contracting license has been canceled as of August 22, 2006. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing disciplinary orders against said license.

12. 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 that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent’s active license. The canceled license shows one matter that was resolved. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

13. Although the facts presented herein support a finding of a violation of the State’s Contracting laws, in light of the fact that Respondent corrected all of the deficiencies in the windows immediately upon hearing of the incident of the window striking Complainant’s head, it is determined and held that nothing greater than a formal admonishment against Respondent licenses should be imposed as a result of this matter. CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (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 Respondent be and hereby is formally admonished that in the future it must take immediate measures to correct any and all known deficiencies in its work. 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, May 12, 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