ALJDEC decisions subject to certification as final

07F-S0020-ROC-RHG · Registrar of Contractors · 2008-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 3, 2008, at 9:00 a.m. APPEARANCES: The Complainants appeared through Daniel Dobler. The Respondent appeared on his own behalf. A Spanish/English speaking interpreter was present. 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 of Rehearing are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. These are both residential matters where the Complainants purchased two, adjoining, residences constructed by the Respondent. The first residence located at 1003 Pendleton and the second residence located at 1005 Pendleton. 3. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct his work to their satisfaction despite repeated requests that he do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests, the Complainants filed two formal Complaints, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted on-site inspections of both residences at issue and issued two separate written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residences. 6. The Corrective Work Order issued in S07-0020 provides, in pertinent part, as follows: “Contractor to correct, repair or replace the following by appropriate means: 1. Roof leaks and ceiling damage. 3. Cracked tile grout. 7. Hole in dry wall. 12. Any and all concrete cracks that do not meet standards. 13. Provide sub-contractor list. 14. Provide plans. 15. Stove to fit properly.” 7. The Corrective Work Order issued in S07-0021 provides, in pertinent part, as follows: “Contractor to correct, repair or replace the following by appropriate means: 1. Roof leaks and ceiling damage. 3. Damage to drywall around door frame. 5. Dry wall around window frame. 6. Main bath caulking at base. 8. Protruding screws into cabinet. 12. Provide sub-contractor list. 13. Provide plans. 14. Living room, kitchen and main bedroom hammer marks. 15. Cracks in cement pad in front of garage and front door. 16. Stove to fit properly.” 8. On or about November 14, 2006, the Respondent filed a written communication with the Registrar of Contractors which provides, in pertinent part, as follows: “All work has been completed as specified on your Corrective Work Order.” 9. The assigned Agency Inspector testified that on February 29, 2008, he conducted an on-site pre-hearing inspection of the two residences at issue and observed the two Corrective Work Orders had not been substantially complied with by the Respondent. 10. Credible testimony and evidence, presented at hearing, established the Respondent had failed to comply with the terms and conditions of the Corrective Work Orders issued in these matters. 11. There was no dispute that the Respondent had operated under the name “Lopez Plumbing” rather than the “Lopez Plumbing and General Contractor” as set forth on the Respondent’s license. 12. The Respondent’s actions, in failing to perform his construction work in a professional and workmanlike manner, in failing to operate under the name set forth on his license, and in failing to comply with the terms and conditions of the Corrective Work Orders issued in this matters, are found to constitute a wrongful act. 13. 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) (7) (Wrongful Act), (15) (Acting in the capacity of a contractor under any license issued by the Registrar of Contractors in a name other than as set forth upon the license), (23) (Failure to taken appropriate corrective action) and (3); namely, Rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order on rehearing In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Orders issued in these matters and the Respondent be formally admonished that he must operate under the full name set forth in his contractor’s license. 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 these matters be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. 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 11, 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 ___________________________

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Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488