ALJDEC decisions subject to certification as final

07F-M0427-ROC · Registrar of Contractors · 2007-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2007 APPEARANCES: Complainants appeared on their 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, Complainants retained Respondent to accomplish specified remodeling in their home, along with adding cabinetry in certain areas. Complainants allege that Respondent failed to complete the project and this issue is discussed in the findings below.

2. The following uncontroverted facts were established at the hearing:

a. Respondent agreed to complete the project within three (3) months of commencement of the work. b. The permit for the project was issued on or about October 31, 2005. c. Although Respondent commenced work on the project, he failed to complete specified aspects of the project; namely the cabinets in the downstairs portion of the home, the media center, an electrical outlet in the living room does not work, smoke detectors were not installed, a specified ceiling patch is highly visible, and the flooring is not complete in a window seat area. d. The total contract price for the project was $29,236.02 and Complainants paid Respondent all but $4,993.10 on the contract. They testified that they have paid Respondent more than the value of the work performed by Respondent. e. Ultimately, when Complainants were unable to have Respondent complete the project, they filed the instant Complaint with the Registrar of Contractors. After receiving the Complaint, the matter was assigned to one of the Registrar’s inspectors. f. The assigned inspector appeared at the instant hearing and provided testimony. The inspector indicated that he convened a jobsite inspection. At the inspection, he determined that the work performed by Respondent was very good work, but the project was not complete. g. Based on his findings, the inspector issued a Corrective Work Order (“CWO”), requiring Respondent to complete the project and to fix the inoperable electric outlet in the living room. The CWO was issued on November 22, 2006 and gave Respondent fifteen (15) days to accomplish the ordered remedial work. h. Notwithstanding the terms of the above-described CWO, Respondent failed to comply with same. i. The inspector also opined that the portion of the work that was completed by Respondent was done in a generally very good manner.

3. Respondent’s failure to complete the project constitutes an abandonment of the project. The instant record failed to demonstrate any legal excuse for Respondent’s abandonment. In addition, the failure to complete the project is also viewed as substandard and unacceptable workmanship. These violations of the State’s Contracting laws are also deemed to constitute wrongful acts, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Respondent’s failure to comply with the terms and conditions of the CWO constitutes a violation of the charged section of the State’s Contracting laws in regard to the need to comply with an official Agency directive.

5. By its failure to appear for the scheduled 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 January 22, 2007. This license 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.

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 numerous prior Complaints that had gone into the hearing process and currently eighteen (18) open Complaints. Therefore, Respondent’s prior record is properly deemed to be abysmal and thus, is viewed as a matter in extreme aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

The undisputed evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (1) and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class KB-02 license shall be revoked on the effective date of the Order entered in this matter.

Done this day, May 21, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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