ALJDEC decisions subject to certification as final

08F-L0277-ROC · Registrar of Contractors · 2009-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 19, 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 purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Uncontroverted evidence of record established that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Stucco is coming off the base of the home and popping-off in other areas. The fog coating of the stucco is uneven and fails to provide a complete and consistent color to the home. b. A section of the metal trim on a specified area of the patio roof fascia was not secure. This deficiency has since been repaired by Complainant. c. There were drywall cracks in the dining room and front bedroom but these have been repaired by Respondent. d. The threshold for the man door to the R.V. garage allows water to penetrate into the interior of the garage. Although Respondent attempted to fix this condition, it has not been adequately repaired.

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 accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to work on some of the items, substantial compliance was not accomplished.

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taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been revoked since October 16, 2008. Such revocation 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 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 regarding any prior final disciplinary orders against Respondent and said notice revealed numerous incidents of prior disciplinary action by the Registrar. Therefore, Respondent’s prior record is properly deemed to be horrible and thus, is viewed as a matter in extreme 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 (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class KB-01 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, February 23, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors William A. Mundell Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] If and when this revocation becomes effective, Complainant will then have access to make a claim to the Residential Contractors’ Recovery Fund.

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