ALJDEC decisions subject to certification as final

08F-H0213-ROC · Registrar of Contractors · 2009-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2009

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared telephonically through its member and qualifying party, Todd Stark (“Stark”). 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 purchased new home construction. As part of the new home construction, tile countertops were installed in the kitchen area. Complainant alleges certain deficiencies in the tile countertop and contends that Respondent is responsible for the substandard workmanship. The facts surrounding this claim are discussed in the findings below.

2. Undisputed evidence of record established that the tile countertop in Complainant’s kitchen is indicative of substandard and unacceptable workmanship, as manifested by excessive lippage, cracked tiles, and cracking of the thinset underneath the tile.

3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to replace the countertop within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same.

4. Evidence of record showed that Respondent was retained by the general contractor on the project to install the tile countertop. Respondent subcontracted the work in question to another contractor, Intricate Flooring (“Intricate”). Intricate installed the countertop and Respondent paid Intricate in full for their work.

5. Stark asserts that under the facts presented herein Intricate, not Respondent, should be responsible for the deficiencies in the countertop. In addition, he showed that Complainant has also filed a Complaint against Intricate in Registrar of Contractors’ case no. H08-0212, wherein the Registrar of Contractors has entered a default Decision and Order, ordering Intricate to rectify the countertop issue. The effective date of the Decision and Order in case no. H08-0212 is January 18, 2009.

6. Notwithstanding the fact that Intricate actually performed the installation of the countertop, Respondent was the prime contractor on the tile countertop project that hired Intricate to install the countertop. Although Intricate, who is not a party to the instant matter, may have a degree of responsibility and liability for the above-described deficiencies in the tile countertop, it must be noted that the contractual obligations of Respondent, the contractor retained by the general contractor to install the countertop, are not discharged merely by the fact that Complainant also filed a Complaint against Intricate. Deficiencies or substandard workmanship must be corrected notwithstanding the unwillingness or inability of a subcontractor to perform appropriate and necessary remedial work. The general contractor on the project contracted with Respondent, not its subcontractors, and thus the “buck stops” on Respondent’s desk. It is of no concern to Complainant that Respondent is having problems forcing its subcontractor to repair the workmanship deficiencies in the tile countertop.

7. Although Respondent is found to be responsible for the substandard and unacceptable workmanship of its subcontractor, nothing in this ruling would serve to prevent Respondent from filing its own Complaint against Intricate or commencing a civil action in a court of competent jurisdiction, for the purpose of attempting to collect any monetary damages that it may sustain.

8. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended by operation for failure to renew since April 1, 2008. Such suspension does 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. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license.

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 regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation 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 (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. It is further recommended that if Respondent either replaces the kitchen countertop or concludes other mutually acceptable arrangements with Complainant[1], on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-48 license shall be placed on a period of disciplinary probation for ninety (90) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $100.00 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 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, January 26, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

----------------------- [1] In the event that Intricate replaces the countertop or Complainant receives compensation from the Residential Contractors’’ Recovery Fund, based on his claim against Intricate, prior to the effective date of the Order entered in this matter, then Respondent shall have no further obligation to Complainant and, in that event only the “lingering” penalties provided herein shall go into effect.

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