ALJDEC decisions subject to certification as final

07F-G2020-ROC-com · Registrar of Contractors · 2009-05-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 27, 2009.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent was represented by its attorney, Richard W. Hundley, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. The above-entitled matter was scheduled for a Compliance Hearing to determine whether or not Respondent has substantially complied with the terms and conditions of the Registrar’s previously entered Order dated July 31, 2008 which became final, effective and non-appealable on September 8, 2008.

2. The Registrar of Contractors entered an Order reopening this matter so as to enable the convening of the instant Compliance Hearing. As expressly set forth in the

terms of such reopening Order and also in the Notice of Hearing, both parties were advised that any finding of non-compliance would result in the immediate imposition of discipline against Respondent’s license and also that any determination of unreasonable interference or denial of access on the part of Complainant would warrant the closing of the administrative action without the imposition of any discipline.

3. Notice taken of the Registrar’s license records reveal that Respondent’s Class B-05 license was suspended on September 23, 2008 pursuant to the prior Order entered in this case, and that such suspension was temporarily lifted by subsequent Order of the Registrar on November 18, 2008 pending the outcome of this Compliance Hearing.

4. The previously entered Order of the Registrar that generally approved and adopted the recommendations of the assigned Administrative Law Judge had provided that a provisional license suspension would be imposed, conditioned upon the timely accomplishment by Respondent of appropriate remedial work relating to eight separate Findings of Fact contained in the original decision.

5. At the outset of the Compliance Hearing, Complainant stated that the required work called for in four of the above-referenced eight prior Findings had been acceptably corrected by Respondent, but that the adequacy of the corrections of the work or the required remedial actions set forth in the remaining four such Findings were still in issue between the parties.

6. The credible evidence presented tended to indicate that the plastic cable channel for the Fiber Optic system was the subject of a repair effort on the part of Respondent but some portion of the cable had once again come loose from the channel. Such repair was shown to have consisted of measures customarily utilized by the specialty subcontractor that installed the system. Although the prior decision

recognized the questionable wisdom of making corrections with sticky tape and silicon materials, it cannot be held that the use of those materials was impermissible of substandard. Moreover, the time needed for rectifying the present extent of separation was shown to be very minimal, and the Registrar’s Inspector testified at the hearing that results of the repair efforts generated far more improved conditions and appearances, except for the relatively small areas that had again become loosened.

7. The two Laminars were the subject of further remedial work, including plumbing repairs, so as to adjust the heights of the sprays from the units. This repair as to the respective heights of the Laminar sprays was apparently successful, but a hole that had to be made for gaining access to the plumbing components was left unfinished at the rear of the water feature that was not visible from the front side. The patching and refinishing of the hole was shown to presently entail only a short duration of additional filling and finishing repair work. With respect to the achieving of a simultaneous change of the spray colors produced by the Laminars, Respondent credibly testified that such result was possible only by having two separate pumps to operate the water sprays and that the pool construction agreement with Complainant provided for only one pump. A reconsideration of such prior finding must prompt a determination that the Laminars are functioning as contractually contemplated with respect to the timing of color changing.

8. It was uncontroverted that new Blue Haven return heads were installed in Complainant’s pool walls, albeit somewhat belatedly. It was shown that such installed Blue Haven heads, conforming to what was expressly promised to Complainant at the time of sale by Respondent, did not fit flush against the walls and that the spaces between the wall and the base of the heads were not of uniform distances. However, the evidence failed to adequately demonstrate that the heads were not operating as intended or that the inability to have each head fit totally flush against the pool wall resulted in an unacceptable installation as tested by prevailing industry standards and

tolerances applicable to the promised Blue Haven return heads. Moreover, these conditions were all below the water surface, decreasing their visibility, and are determined not to have adversely impacted on the aesthetics of the installation.

9. It was not effectively disputed that, although a far less extensive corrective treatment was envisioned under the prior Order with respect to repairs to the pebble tec interior pool surface, Respondent decided to wholly remove and replace the entire pebble surface. This was admittedly accomplished by Respondent, with some very small areas of stains or chips left on the Kool Deck surfaces at scattered locations. Once again, the time needed to perform proper remedial work at all such locations was shown to be very short. The evidence was inconclusive with respect to the cause of or the responsibility for some extent of a depression in a plastic cover on the deck surface. Additionally, Respondent did not tender payment to Complainant after the pebble tec work for the cost of refilling the pool with water, such refilling cost shown to be not more than $100.00 in value. However, Complainant never furnished Respondent with a copy of his water bill for the applicable month so as to allow Respondent to apply the disclosed rate of water charges to the approximate 12,000 gallon pool size for the purpose of enabling a near- accurate calculation of the monetary amount properly payable for the refilling.

10. After allowing the passage of some time to ascertain whether any appeals of the original Order or any Petitions for Rehearing would be filed, Respondent did commence remedial measures shortly prior to the prior Order’s effective date of September 8, 2008. The parties did conclude a mutual agreement extending the performance time for at least one of the major repair items until September 12, 2008, or approximately four days after the otherwise applicable effective date. However, several days after the expiration of the parties’ extended deadline date, Complainant notified Respondent that all work was to be fully completed no later than September 16, 2008. Respondent was able to accomplish some further work by the end of that last day.

11. The next day, on September 17, 2008 when Respondent was in the process of making a planned return to the jobsite so as to perform the relatively few hours of work needed to appropriately complete all repair items, Complainant communicated formal notification to Respondent that he would not allow further access to the premises and that the gate would be locked. The communicated position of Complainant was based upon advice purportedly received from the Registrar’s office. The notification additionally announced that there should be no further contact between the parties. The Respondent’s license suspension was thereafter activated on September 23, 2008.

12. Respondent confirmed to the Registrar on October 6, 2008 that it had performed much of the required corrective work but was unable to complete all work due to the denial of access. When Complainant contacted the Registrar’s office a bit more than a week later, he received additional information to the effect that, although he retained the right to deny access to Respondent, thereby preventing Respondent’s compliance after the effective date of the prior Order, there would be a risk that such access denial, if deemed or found improper, could generate a possibility that the matter might be closed without further discipline. This information, accurately setting forth the parties’ respective rights and the risks entailed, is found to cast some degree of doubt with respect either to the accuracy of specific information claimed to have been earlier received from the Registrar’s office or of Complainant’s understanding of same that led to his formal denial of access notification letter.

13. Immediately following the clarification or further information given to Complainant, a subsequent communication was sent on October 16, 2008 by Complainant “to the Registrar” (not to Respondent) that the gate was unlocked and that work may resume. It is probable that Respondent never learned of the change by Complainant in granting permission to enter onto his property until after receiving the Registrar’s November 18, 2008 Order lifting the previously imposed license suspension and directing that a Compliance Hearing be Scheduled.

14. It is found and determined under all the circumstances, including the more than 55-day duration of the imposed suspension of Respondent’s license, that not only has Respondent achieved substantial compliance with the spirit and intent of the prior Order but also that Complainant’s denial of access to allow Respondent’s completion of a relatively minor extent of remedial work was without sufficient justification. Stated alternatively, the elements of remaining corrective work when compared with the totality of all other remedial measures undertaken by Respondent, some even exceeding the required minimum amount of required repair work, are deemed to be de minimis and to not support any finding of non-compliance. In effect, Complainant must be found to have waived any further entitlement to receive the rather small amount of remaining additional remedial work.

CONCLUSIONS OF LAW

1. The totality of the evidence of record adequately established that after having almost achieved complete compliance with the all of the terms and conditions of the previously entered Order of the Registrar, Respondent was unjustifiably denied access to the Complainant’s property so as to enable full completion or repair of the required overall remedial measures. Although a contractor is not afforded an endless amount of time for fully and properly completing required remedial measures, the relatively short time span beyond the effective date that was here involved and the nearness to appropriate full completion combine to support a determination that Complainant’s overall course of conduct has deprived Respondent of its reasonable opportunity to fully comply with the prior Order’s terms so as to avoid the imposition of any further otherwise applicable disciplinary penalties.

2. A prevailing party/Complainant is given no vested right in either the quantum of any imposed disciplinary penalty or in its duration. The suspension in this case has been served by Respondent for a 55-plus day time period, and such penalty is far more

than adequate to recognize the extent and the value of any remedial actions that remain to be performed and that are being deemed to have been waived by Complainant’s unjustified denial of access under all the circumstances.

3. A closing by the Registrar of the pending administrative action is appropriate and fully warranted at this time.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended on Compliance Hearing that the Registrar’s provisional lifting of the previously imposed suspension of Respondent’s license pending the outcome of this Compliance Hearing become permanent and that the entire Citation and Complaint in Case Number G07-2020 be closed.

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 forty (40) days from the date of that certification.

Dated: May 8, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

____________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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