ALJDEC decisions subject to certification as final

07F-Y0238-ROC · Registrar of Contractors · 2009-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2009, at 9:00 a.m. APPEARANCES: The Complainants appeared through Flora Z. Ocampo. The Respondent appeared through its attorney, Richard W. Files. 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 constructed a new residence for the Complainants. 3. During the course of construction the personal relationship between the parties deteriorated rapidly. 4. The Complainants are extremely dissatisfied with the Respondent’s workmanship and demanded the Respondent correct its alleged poor workmanship. 5. The Complainants were also dissatisfied with the Respondent’s actions in allegedly overcharging them for the construction of their new residence and demanded the Respondent resolve the issue to their satisfaction. 6. When the Respondent failed to comply with the Complainants’ demands, 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 Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 8. Credible testimony and evidence, presented at hearing, established the Respondent has fully complied with the terms of the first Corrective Work Order issued on July 9, 2007. 9. The parties were in sharp dispute as to whether the Respondent had properly complied with the terms and conditions of the July 17, 2007, Corrective Work Order. 10. Credible testimony and evidence, presented at hearing, established the Respondent had failed to correct the foul odor coming the kitchen sink. The Respondent shall properly correct the foul odor problem as per the terms and conditions of the July 17, 2007, Corrective Work Order. 11. Credible testimony and evidence, presented at hearing established the north wall of the garage has not been properly corrected, the exterior of the wall has an unacceptable bulge and an unacceptable stucco crack and the interior of the garage has three (3) unacceptable nail pops. The Respondent shall properly correct the interior and the exterior of the garage wall including all necessary touch-up as per the terms and conditions of the July 17, 2007, Corrective Work Order. 12. Credible testimony and evidence, presented at hearing, established the remaining items of the July 17, 2007, Corrective Work Order have been corrected to within applicable workmanship and industry standards. 13. The Respondent’s dispute regarding the Complainants’ claim that they were overcharged by the Respondent for the purchase of the new residence and their claim for monetary damages is found to be in good faith; as such, any resolution of the Complainants’ monetary claims must be resolved, if at all, in a civil court of competent jurisdiction. 14. The credible testimony and evidence of record is insufficient, and fails, to support a finding of a wrongful or fraudulent act. 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) (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, and accepts, written proof that the Respondent has properly complied with the terms and conditions of the July 17, 2007, written Corrective Work Order issued in this matter. 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 this matter 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, February 18, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

Registrar of Contractors 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 Fax: (520) 628-5575 www.azoah.com