ALJDEC decisions subject to certification as final

08F-3201-ROC · Registrar of Contractors · 2009-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2009

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. Complainant retained Respondent to build a new custom home. Complainant alleges deficiencies in Respondent’s work and that Respondent failed to complete the project. The facts surrounding this claim are discussed in the findings below.

2. Uncontroverted evidence of record established that although Respondent commenced work on the project he terminated work on the project at a stage when the project was only 50% to 60% complete.

3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency issued a Corrective Work Order (“CWO”) on June 5, 2008, directing Respondent to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to return to the project.

4. A review of the items set forth in the aforementioned June 5, 2008 CWO supports a finding that Respondent’s work failed to comply with applicable building codes, as well as the applicable plans and specifications. In addition, Respondent’s work was shown to be substandard and unacceptable. Respondent’s conduct on the project is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s contracting laws.

5. Respondent’s failure to comply with the terms and conditions of the June 8, 2008 CWO constitutes a violation of the applicable charged section of the State’s contracting laws regarding the need to comply with an official directive from the Registrar of Contractors.

6. Contrary to the finding in the CWO, there was evidence of record which established that water had leaked into the house.

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

8. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since October 26, 2008 and for a failure to renew the license since March 1, 2009. Such suspensions do not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case.

9. 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 three (3) other open Complaints and one matter wherein Respondent had received a disciplinary sanction. Therefore, Respondent’s prior record is properly deemed to be 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

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2), and (3); namely Rule R 4-9-108.

2. There was no evidence at the hearing to show that Respondent violated the provisions of A.R.S. § 32-1154A (10) or (11).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B 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, May 13, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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