ALJDEC decisions subject to certification as final

07F-H0421-ROC · Registrar of Contractors · 2008-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 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. Pursuant to contract, Complainant retained Respondent to install a new swimming pool on his property. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. Complainant testified at the hearing that the applicable contract was entered into between the parties in the “latter part of 2005.” This testimony was not controverted.

3. Further uncontroverted evidence of record established that the following deficiencies are present in the pool construction and attributable to Respondent:

a. Although Respondent attempted to make a repair on the pool pump leak issue, water is still leaking in the same area, as manifested by water on the equipment slab and moisture on the ground in said area. b. There is a water leak on the east side of the pool, in that water is visible on the ground adjacent to the pool deck in said area. In addition, prior repairs to the inside of the skimmer are failing, as manifested by the caulk type material beginning to peel off the sides of the skimmer. c. The built-in cleaning system fails to push all of the dirt into the drain, thereby leaving several areas in the pool with dirt accumulation. d. There are numerous cracks in the pool deck that have not been repaired.

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 and Respondent’s efforts to work on some of the items, substantial compliance was not accomplished.

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

5. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been revoked since January 28, 2008. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing revoked license status must be considered when determining appropriate penalties in this case.

6. 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 two prior disciplinary actions against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be poor 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, May 5, 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