ALJDEC decisions subject to certification as final

08F-H0018-ROC · Registrar of Contractors · 2008-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2008, at 1:30 p.m. APPEARANCES: The Complainants appeared through Jarod Marks. The Respondent appeared on his own behalf. 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 Complainant entered into a Construction Agreement with the Respondent for the construction of a new residence. 3. The personal relationship between the parties deteriorated rapidly culminating in the Respondent’s abandonment of the construction project. 4. The Complainant then filed a formal Complaint (H07-0179), against the Respondent, regarding the Respondent’s abandonment of the construction project. 5. An administrative hearing was held and the Respondent was found to have abandoned the construction project and the Respondent’s Class B- License was suspended on May 12, 2008. 6. A review of the record in Registrar of Contractors’ Case Number H07-0179 supports a finding that the workmanship issues set forth in the Complaint at issue were not addressed in the prior Complaint. 7. The Complaint at issue is based on the Complainant’s dissatisfaction with the Respondent’s workmanship. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct his work to the Complainant’s satisfaction despite the Complainant’s demand that he do so. 8. When the Respondent failed to comply with the Complainant’s demand, the Complainant then filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 10. The 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. 1. Determine the cause of the walls by the master bathroom/hallway being out of plumb in excess of ½ inch and repair by appropriate means. Repairs include repairs to drywall painting, floor covering etc. 2. The floors in question that are out of level appear to be the concrete floor and not the wood floor installed by Respondent. Respondent is not required to repair the concrete. 3. The bowed wall is caused by a bad stud; the materials were supplied by the Complainant and are not the responsibility of the Respondent. 4. Properly repair the kitchen window opening to include drywall, paint, stucco and floor covering etc. 5. The concrete entry/porch was not installed by or contracted by the Respondent No corrective action required.” 11. Credible testimony and evidence, presented at hearing, established the Respondent has failed to comply with the terms and conditions of the Corrective Work Order. 12. Credible testimony and evidence, presented at hearing, established the Respondent’s workmanship fails to comply with applicable industry and workmanship standards. 13. The Respondent’s actions, in failing to perform his work in a professional and workmanlike manner and in failing to comply with the terms and conditions of a Corrective Work Order, are found to constitute a wrongful act. 14. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct his own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor to complete the project and comply with the terms and conditions of the Corrective Work Order issued in this matter. 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) (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 revoked unless the Registrar of Contractors receives proof that the Respondent has, utilizing a properly licensed contractor, caused the proper compliance of the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended if the Respondent, utilizing a properly licensed contractor, causes the proper accomplishment of the above described corrective action, on or before the effective date of this Order, then the above provided License revocation 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, August 28, 2008.

______________________________________ M. Douglas 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 ___________________________ -----------------------

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