ALJDEC decisions subject to certification as final

08F-0220-ROC · Registrar of Contractors · 2008-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2008

APPEARANCES: Complainant appeared on his own behalf and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to install new flooring in his home. Complainant alleges a certain deficiency in the work performed by Respondent and same is discussed in the findings below.

2. Uncontroverted evidence of record established the following:

a. In the course of installing tile for the upstairs master bathroom, Respondent removed the commode. During this procedure, Respondent failed to completely turn off the water supply, resulting in extensive water damage to the ceiling below. b. As a direct result of Respondent’s negligence, Complainant incurred significant costs to repair the damage. He paid $2,058.33 to a dry-out service company, $1,125.00 for drywall installation, and $450.00 to apply texture and paint to the new drywall. c. Although Respondent is totally responsible for all of the damage sustained by Complainant’s home, Respondent has only paid the drywall installation billing. Notwithstanding repeated demands by Complainant to be reimbursed for the remainder of his repair expenditures, Respondent has refused to pay the remaining billings. d. Due to Respondent’s failure to pay the outstanding repair bills, Complainant filed the instant Complaint with the Registrar of Contractors.

3. It is determined and held that the failure to completely turn off the water supply valve for the commode constitutes substandard and unacceptable workmanship by Respondent. In addition, the damage this poor workmanship caused is a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

5. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been revoked since May 6, 2008. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing revoked license status must be considered when determining appropriate penalties in this case.

6. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors and said notice revealed thirteen (13) complaints that were resolved, settled or withdrawn, along with the aforementioned license revocation. In addition, there are currently five (5) open complaints on the record. Therefore, Respondent’s prior record is properly deemed to be extremely poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license shall be revoked on the effective date of the Order entered in this matter.[1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, May 20, 2008.

______________________________________ Mark A. Silver 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 ___________________________

----------------------- [1] This revocation should allow Complainant access to the Residential Contractors’ Recovery Fund to make a claim for his remaining monetary damages caused by Respondent.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826