ALJDEC decisions subject to certification as final

08F-P0180-ROC · Registrar of Contractors · 2009-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared through its authorized representative Greg Hatch. The Respondent appeared through its authorized representative Mark C. Trail. 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. The Respondent is the holder of a Class K-34 License issued by the Registrar of Contractors. 2. This is a commercial matter where the Respondent cleaned, degreased and applied an epoxy finish to the Complainant’s shop floor. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands, 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 issued a written Corrective Work Order (CWO) directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order (CWO) provides in pertinent part as follows: “1. Shop floor not degreased or epoxyed correctly at some areas and floor damaged by Complainant at some areas. Contractor to correct by appropriate means areas not damaged by Complainant.” 7. Credible testimony and evidence established that the Respondent failed to comply with the terms and conditions of the Corrective Work Order (CWO). 8. The Respondent is no longer in business and according to the Respondent’s representative no longer owns a paint brush. 9. The Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing. However under all of the salient facts and circumstances presented herein this Respondent should not be allowed to wreak any further havoc on the Complainant’s business. 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 comply with the terms and conditions of the Corrective Work Order (CWO) issued in this matter. 10. The Respondent’s actions in failing to perform its 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. 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 that the Respondent’s Class K-34 License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor to comply with the terms and conditions of the written Corrective Work Order (CWO) issued in this matter. It is further recommended that if the Respondent 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 that 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, April 14, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

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

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