ALJDEC decisions subject to certification as final

07F-T0018-ROC · Registrar of Contractors · 2007-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2007, at 9:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. 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 B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into an oral agreement with the Complainant to re-tile the Complainant’s bathroom. 3. Credible testimony and evidence, presented at hearing, established the Complainant has paid the sum of $9,739.84 to the Respondent for his work on her residence. 4. The Complainant was dissatisfied with the Respondent’s workmanship and failure to complete and correct his work despite repeated requests that it do so. 5. When the Respondent failed to comply with the Complainant’s repeated requests, 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 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: “1. The bathroom tile improperly installed. Correct by appropriate means. 2. Bathroom pipes are extended 3” to 4” from wall. Correct by appropriate means. 3. There are large holes in wall where pipes come thru. Need escution plates. Correct by appropriate means. 4. Complete this project according to all written and all verbal contract agreements, prints, plans, specifications, manufacturer’s specifications and recommendations, in accordance with good workmanship practices, industry standards and per all applicable codes.” 8. The Respondent failed to comply with the terms and conditions of the Corrective Work Order. 9. Credible testimony and evidence, produced at hearing, established the tile work in the Complainant’s bathroom is so poor that it will require removal and replacement in order to comply with applicable industry and workmanship standards. 10. The Respondent’s actions, in failing to utilize a written contract as required by A.R.S. §32-1158, perform his work in a workmanlike manner and to comply with the terms and conditions of a Corrective Work Order, are found to constitute a wrongful act. 11. The parties were in dispute as to whether the licensed plumber utilized in the construction project was a subcontractor for the Respondent or a subcontractor working directly for the Complainant. The Respondent is found to be responsible for the proper correction of the bathroom pipes and the proper installation of the escution plates as set forth in the Corrective Work Order issued in this matter. The Respondent, utilizing a properly licensed contractor, shall cause the bathroom pipes to be properly corrected and the escution plates to be properly installed.

12. 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), (23) (Failure to take appropriate corrective action) and (3); namely, Rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDED ORDER 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 revoked unless the Registrar of Contractors receives proof the Respondent has properly removed and replaced the tile in the Complainant’s bathroom and, utilizing a properly licensed contractor, has caused the proper correction of the bathroom pipes and the proper installation of the escution plates. 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 revocation shall not take place and that instead the Respondent’s Class B- License shall be placed on one hundred (100) days of disciplinary probation. 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, February 1, 2007.

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

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