ALJDEC decisions subject to certification as final

08F-S0236-ROC · Registrar of Contractors · 2009-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9, 2009 at 1:15 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through his attorney, Jeffrey T. Brei. A Spanish/English speaking interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 purchased a new residence constructed by the Respondent. 3. Within a year of occupation the new residence began to show cracking and other workmanship issues related to settlement. 4. The Complainant notified the Respondent of the problems and requested corrective work. 5. The Complainant was dissatisfied with the Respondent’s corrective action and with the Respondent’s failure to correct his work to her satisfaction despite her demand that he do so. 6. When the Respondent failed to comply with the Complainant’s demand the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 7. 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. 8. Credible testimony and evidence established that the Respondent attempted to comply with the terms and conditions of the Corrective Work Order and that the Complainant denied access to the Respondent and his subcontractors based upon her disagreement with the Respondent chosen method of correction. 9. The Complainant’s action in denying access to the Respondent and the Respondent’s subcontractor’s is found to be unreasonable. However, a part of the reason may have been due to the Complainant’s asserted limited English language abilities and it is found that the Complainant should be given one, final, opportunity to accept corrective action from the Respondent and his subcontractors. 10. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of corrective work. Instead the decision as to the method of corrective work is left up to the licensed contractor which makes such a decision at his peril. The selected method of corrective work must bring the Respondent’s defective work to within applicable workmanship and industry standards. 11. Although the Complainants concerns, frustrations, and aggravation regarding the problems she has experienced with the construction of her new home are understandable, construction work, such as that at issue herein, is not a perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to complete necessary remedial work. 12. 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)(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 B- license shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, July 9, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

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

By ___________________________ -----------------------

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