ALJDEC decisions subject to certification as final

08F-2700-ROC · Registrar of Contractors · 2008-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president and qualifying party, Francisco Ramirez (“Ramirez”). 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 tile throughout her home. Complainant alleges a specified deficiency in the work performed by Respondent and same is discussed in the findings below.

2. Jorge Villarruel (“Jorge”), Complainant’s husband, appeared at the hearing and provided testimony. He indicated that there is a significant problem with tile lippage in the tile work installed by Respondent. He testified that numerous areas show lippage in the tile and this problem can be found in the kitchen, family room, hallway, dining room and second family room.

3. After the Complaint was filed with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the hearing and provided testimony. He indicated that the tile in the home was very uneven in many areas due to excessive lippage. He believed it constituted a trip hazard and it could be dangerous, due to the fact that the tiles are a square edge porcelain material.

4. The inspector convened a jobsite inspection after receiving the filed Complaint. Subsequent to concluding the jobsite inspection, he issued a Corrective Work Order (“CWO”). Although the CWO advised Respondent to correct the lippage problem by appropriate means, it also provided that since Respondent’s license had been cancelled, it could not perform or subcontract the performance of the remedial work. It did advise Respondent that it could provide Complainant with a financial settlement.

5. Although the CWO only mentioned 13 tiles that needed correction, the inspector testified that many more lippage areas were shown to him at the pre-hearing inspection.

6. Ramirez testified that Respondent would have fixed the thirteen tiles, listed in the CWO, but he was advised by the Registrar of Contractors not to perform any work, due to the canceled status of the license. There was no evidence to show that he ever attempted to reach a financial resolution of the issue with Complainant.

7. Evidence of record was sufficient to support a finding that the tile lippage situation in Complainant’s home is indicative of substandard and unacceptable workmanship attributable to Respondent. In addition, said deficiency in the tile is found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

8. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled since January 26, 2008. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing a disciplinary order. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. 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, December 24, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

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

By ___________________________

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