ALJDEC decisions subject to certification as final

07F-P0243-ROC · Registrar of Contractors · 2008-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2008, at 9:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Troy Guthrie. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT 1. Respondent is the holder of a Class K-09 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent agreed to construct piers and ribbon curbing and a 15’ x 24’ concrete slab for the Complainant. 3. The Respondent started construction work at the Complainant’s residence. 4. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work to the Complainant’s satisfaction despite her demand that it do so. 5. When the Respondent failed to comply with the Complainant’s demand, the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on April 6, 2007, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The Corrective Work Order provides, in pertinent part, as follows: “Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter. ITEMS OF COMPLAINT: 1. Anchor bolts not installed per plans. Homeowner stated that the manufacturer stated that redheads would be okay if they were at least 5/8” bolts. The bolt pattern needs to be confirmed prior to anything being installed. Contractor to correct by appropriate means. 2. Pad high in air not at grade of aisle. In the opinion of this inspector grade was established as to be the height of the rock that could not be removed because no hammer-hoe was brought in. No action required. 3. Sono-tubes used for pier columns and not in line with bolt patterns. This needs to be specified as to where they actually need to be installed. Contractor to correct by appropriate means. 4. Ribbon curbing between piers inconsistent depth and not what was called for per plan. These ribbons were cut short at the north end because of the existing rock layer and the Homeowner admitted knowing this. This needs to be corrected at areas to match the north side. Contractor to correct by appropriate means.” 8. Credible testimony and evidence, presented at hearing, established the assigned Agency Inspector informed the parties that due to poor weather conditions in the area, the Respondent would have until the month of May 2007 in which to comply with the terms and conditions of the Corrective Work Order. 9. Credible testimony and evidence, presented at hearing, established there was no written request for an extension of time and there was no written extension of time. 10. The Complainant testified that when the Respondent failed to contact her during the first part of May 2007, the Complainant checked with the Registrar of Contractors’ Phoenix office and was informed that there was no extension of time in the file and she was entitled to proceed with repairs at her discretion. 11. The Complainant then retained an alternative licensed contractor to remove and replace the work performed by the Respondent. The construction project is now complete and no further corrective action is possible. 12. The Respondent asserts that it was prepared to perform the directed corrective action and the Complainant’s actions in causing the Respondent’s construction work to be removed and replaced by an alternative contractor constitutes an unreasonable denial of access. 13. Credible testimony and evidence, presented at hearing, established the Complainant’s actions in causing the corrective work to be performed by an alternative contractor were reasonable and justified under the circumstances. However, no violation of the charged provisions of A.R.S Section 32-1154A (23) can be found because of the unwritten extension of time given in this matter. 14. Credible testimony and evidence, presented at hearing, established the construction work performed by the Respondent failed to comply with applicable industry and workmanship standards and that the Complainant received no value for the $3,090.00 that she paid the Respondent and the Complainant has suffered a financial injury as a result of the Respondent’s poor workmanship. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. A.R.S. Section 1156.01 provides as follows: “After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.” RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class K-09 License shall be suspended until the Registrar of Contractors receives proof that the Respondent has, as restitution, repaid the Complainant the $3,090.00 that the Complainant paid the Respondent for the construction work at issue. It is further recommended if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, March 25, 2008.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 www.azoah.com