ALJDEC decisions subject to certification as final

07F-M2051-ROC · Registrar of Contractors · 2009-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2007 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president and qualifying party, Alvin Gitt (“Gitt”). 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 patio room addition onto her home. She alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. Undisputed evidence of record established the following:

a. Respondent failed to obtain the required permit, prior to commencing work on the project. b. The room, as constructed, fails to comply with specified requirements of the local building authority, such as set back regulations and adequate egress/access from and to the room. c. As the room is currently constructed, it is an illegal structure.

3. The items described in the foregoing Finding of Fact constitute substandard and unacceptable workmanship, as well as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Gitt testified that he had every intention of obtaining the permit, but simply “goofed-up” and inadvertently forgot to obtain said permit. Although this fact serves to explain the failure to obtain the required permit, it does not excuse said failure. Nevertheless, said unintentional mistake will be considered as a matter in mitigation for the consideration of any disciplinary sanctions to be imposed as a result of the Order entered in this matter.

5. Complainant was required to obtain a variance for the construction of the addition. After the variance was issued, Respondent finally obtained a permit for the project.

6. Notwithstanding the issuance of the permit, no corrective work, as required by the local building authority, has been completed due to the fact that Respondent’s license was revoked, effective on October 16, 2007.

7. Notwithstanding the revocation of his license, Gitt testified that he tried to resolve all of the issues of the Complaint with Complainant. Among other things, he advised Complainant that he would send a licensed contractor to her home to perform the necessary remedial work to bring the addition into compliance with the requirements of the local building authority and that she would pay said contractor, after which he would reimburse her for said costs. He testified that she refused this offer.

8. According to Complainant, she did not understand Gitt’s proposal to correct the issues the way he described it at the hearing. She believed he was going to pay to have another contractor correct the addition issues and, when she described this to a Registrar of Contractors’ Legal Department representative, she was advised that Respondent could not pay another contractor directly. Thus, she refused his offer to correct.

9. 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. On said directive, the only item, that Respondent failed to comply with is the corrective work necessary was to bring the addition into compliance with all of the requirements of the local building authority. As aforementioned, due to the license revocation and the issue of his proposal to Complainant as to how the work would be accomplished, he was unable to achieve compliance in this regard. Under all of the salient facts and circumstances presented herein, Respondent is not found to have violated the spirit and intent of the applicable charged section of the State’s Contracting laws regarding the need to comply with an official agency directive.

10. The revocation of Respondent’s license 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.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (2), (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. It is further recommended that if Respondent pays or tenders to Complainant the reasonable cost to bring the patio addition structure into full compliance with all local building authority requirements, on or before fifteen (15) days after the effective date of the Order entered in this matter, then the above-provided license revocation shall not take. It is further recommended, by way of a condition precedent for any obligation of Respondent to pay the above-described sum of money, Complainant shall provide Respondent with a minimum of three (3) bids[1] from licensed contractors, showing the itemized costs to correct the issues with the patio addition. Any failure by Complainant to tender the required bids to Respondent on or before the effective date of the Order entered in this matter shall be deemed to relieve Respondent of any responsibility to pay or tender the aforementioned sum of money and shall result in this Citation (no. M07-2051) and Complainant being closed, without the imposition of any disciplinary sanction against Respondent’s license. 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, March 5, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Respondent will only be responsible to tender the sum of money set forth in the lowest of the three bids submitted by Complainant.

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