ALJDEC decisions subject to certification as final

08F-P0018-ROC · Registrar of Contractors · 2008-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2008, at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. 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 K-61 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed remodeling work on the Complainant’s residence . 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct his work and complete the construction project despite repeated requests that he do so. 4. When the Respondent failed to respond to the Complainant’s repeated requests the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 6, 2007, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. 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. Stucco washes off not applied properly. At the fenced walls the stucco was coming off, it appeared to not be adhering to the painted surface. This was chipping off as well as rubbing off. Contractor to correct by appropriate means. 2. Stucco different colors not sierra as requested. There were many areas that the stucco was not of a uniform color. The exterior walls were different than the home and the home had patches that were not consistent to the primary colors. Contractor to correct by appropriate means. 3. Stucco was not applied to all areas. The stucco was missing at the electrical boxes, sidewalls, stucco was applied over the light fixtures, conduit, and at phone cable box was missing all together. Contractor to correct by appropriate means. 4. Spanish tiles not laid correctly with cracks, birds or water damage. The tiles were not consistent in line, not touching, and big holes where birds could get in. There were cracked tiles, no nails to hold them on the roof and the fronts were out of line. The fascias were also cracked when nailed and repaired with caulking which is not correct. Contractor to correct by appropriate means. 5. Cracks in steps and stucco. There was a concrete overlay on the front steps and the joint between the old and the new is now cracked. Contractor to correct by appropriate means. 6. Non-professional placement of vents. There were new vent covers installed to the crawl space and the vents did not meet the stucco with large gaps. Contractor to correct by appropriate means. 7. Leveling of duplex not level. I checked and most the home was level except the master bedroom. Contractor to correct by appropriate means. 8. Windows not installed correctly. There were five windows that were not centered in the framework. Front window was installed but is not the right type of window for this application and the ctr. Should have notified the Complainant that he needed a different window. The Complainant bought the windows. The Complainant should buy a new window and the Contractor should install it. There were two windows that the slides were removed and now they do not stay open and one window in the back bedroom that was installed upside down. Contractor to correct by appropriate means.” 7. Credible testimony and evidence, presented at hearing, established the Respondent failed to comply with the terms and conditions of the Corrective Work Order. 8. Credible testimony and evidence, presented at hearing, established the Respondent’s workmanship on this construction projection is extremely poor and fails to comply with applicable industry and workmanship standards. 9. The Respondent’s actions, in failing to perform his construction 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. 10. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its 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 this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor to complete the project. 11. 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 K-61 License shall be suspended until the Registrar of Contractors receives proof that the Respondent has complied, utilizing a properly licensed contractor, with 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 corrective action set forth in the Corrective Work Order, on or before the effective date of this Order, then the above provided License suspension 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, June 27, 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 ___________________________

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