ALJDEC decisions subject to certification as final

07F-T1235-ROC · Registrar of Contractors · 2009-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2009 at 9:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Noah Van Auhburg. The Respondent appeared through its attorney, Eric Hawkins. 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 parties entered into a Construction Agreement for the construction of the Complainants’ new residence. 3. Credible testimony and evidence, presented at hearing, established the Respondent performed work and functioned as the general contractor for the construction project. 4. During the course of construction the personal relationship between the parties deteriorated rapidly. 5. The Complainants were extremely dissatisfied with the Respondent’s workmanship and failure to properly correct its work to their satisfaction despite repeated requests that the Respondent do so. 6. When the Respondent failed to comply with the Complainants’ repeated requests the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint an assigned Agency Inspector conducted several on-site inspections and issued two written Corrective Work Orders directing the Respondent to perform designated corrective work on the Complainants’ residence. 8. The June 14, 2007 Corrective Work Order provides, in pertinent part, as follows: “…the following action must be taken no later than 15 calendar days from the date of this letter. 3. Correct all window/frame related defects throughout by appropriate means including bent tracks, out of adjustment, scratches, peeling paint, missing trim piece, cleaning, etc. 4. Correct the poor caulking and properly seal all vertical brake metal located at the large commercial style windows by appropriate means. Correct the height alignment of this metal. 8. I cannot confirm who or what chipped the Jacuzzi tub. If it was brought to the contractor/s attention within 10 days after move-in, then it is the contractor’s responsibility to correct. 9. Correct all wood floor defects including loose boards, peaking joints, gaps, etc by appropriate means. The flooring has been cleaned by another and I cannot confirm who or what caused the “hazing.” 10. Correct the drywall holes along the wood floors. 11. The fountain has been installed at the front entry. Gerlach agreed to “hook it up” so that it functions as it was intended.” 9. The November 6, 2007 Corrective Work Order provides, in pertinent part, as follows: ”1. Wood floor defects were addressed in the previous Corrective Work Order and have not been properly corrected. Correct. 2. The window frames, trim caulking, etc defects were addressed in the previous Corrective Work Order and have not been properly corrected. Correct. Additional glass defects and scratches were painted out during the jobsite inspection. Contractor should correct defects between panes. Scratches should be reported within 10 days of occupancy or replacement installation. 3. Correct the family room fireplace defects including missing trim and scratches. 4. Correct rear porch lid defects including cracks and pealing paint. 6. The drywall holes at wood floor defects were addressed in the previous Corrective Work Order and have not been properly corrected. Correct. 7. The function was addressed in the previous Corrective Work Order and does not function. Correct. 8. The irrigation box area is damp and there are damp areas around various capped lines. Correct. 10. Correct all paint related defects in the upstairs room including peeling, sheen mismatch, discoloration, etc. 11. Correct/adjust family room and master bedroom ceiling fans. 12. Correct master bedroom double interior doors.” 10. Credible testimony and evidence, presented at hearing, established the Respondent failed to comply with the two Corrective Work Orders. 11. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner and in failing to comply with the terms and conditions of two Corrective Work Orders, are found to constitute a wrongful act. 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 suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the two written Corrective Work Orders issued in this matter. It is further recommended that 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 this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $1,000.00 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 4, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com