Vacate

07F-M2348-ROC · Registrar of Contractors · 2008-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

This matter came on for hearing on February 21, 2008, pursuant to a Complaint filed by Complainants. Complainants appeared at the hearing on their own behalf and Respondent appeared through its owner and qualifying party, Mark Holroyd. At the outset of the hearing, it became clear that the facts relied upon to bring this matter to a hearing no longer existed, as the issues of the Complaint had drastically changed. The Complaint filed in this matter alleged a singular issue; namely that Respondent presented Complainants with a bid proposal/contract to perform a shower remodel and Respondent refused to perform any work on the contract. Notwithstanding the fact that Complainants did not give Respondent any down-payment on the contract, they filed the instant Complaint with the Registrar of Contractors. Based on the issue set forth in the narrative Complaint filed by Complainants, the Registrar of Contractors ultimately issued a formal Citation and Complaint, essentially alleging that Respondent refused to perform on the contract after submitting a bid (A.R.S. §32-1154A (1)) and Respondent’s conduct constituted a “wrongful act” (A.R.S. §32-1154A (7)). Seemingly the charge of a “wrongful act” was solely related to Respondent’s failure to perform any work on the project after presentation of a bid/contract, since there were no other allegations in the filed Complaint. Sometime after the Complaint was filed, Respondent elected to perform the work on the contract, in order to make the Complaint go away. Although the majority of the work on the project has been performed by Respondent, Complainants now, for the first time, have workmanship complaints and an allegation that Respondent failed to comply with the shower door specification of the contract. There was no inspection by the Registrar of Contractors of the alleged workmanship issues and thus, no opportunity for the contractor to comply with any Corrective Work Order that may issue or for the Registrar of Contractors’ inspector to determine that there is no basis for the alleged workmanship complaints. It would be unfair and inappropriate to allow this matter to proceed to hearing against Respondent’s license, without giving the parties the normal opportunity (procedure) to have the workmanship related issues reviewed by an assigned Registrar of Contractors’ inspector. In addition, in the event that the actions of the inspector fail to resolve the issues of the Complaint, then the Citation and Complaint should be amended or a new Citation and Complaint issued to include the appropriate workmanship related charges. Therefore, good cause appearing, the above-entitled case is vacated from the calendar of the Office of Administrative Hearings and remanded to the referring agency for appropriate disposition.[1]

Done this day, February 21, 2008.

_________________________________ Mark A. Silver Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2008 to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By _______________________________

----------------------- [1] The parties are on notice that it is within the discretion of the Registrar of Contractors as to whether or not Complainants will need to file a new Complaint or merely file a formal written amendment to the instant Complaint, prior to having an inspector view the workmanship related issues of the Complaint.

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