ALJDEC decisions subject to certification as final

08F-T1125-ROC · Registrar of Contractors · 2009-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2009 at 9:00 a.m. APPEARANCES: The Complainants appeared through James C. Leavens. The Respondent appeared through its attorney, Patrick Monahan. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 KB-01 license issued by the Registrar of Contractors. 2. This is a residential matter where the Complainants purchased a new residence constructed by the Respondent. 3. The Complainants were dissatisfied with the Respondent’s workmanship and failure to properly correct its work despite repeated requests that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests, the Complainants 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 April 23, 2008 issued a lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence. 6. Credible testimony and evidence established that the Respondent failed to comply with the terms and conditions of the written Corrective Work Order. 7. Credible testimony and evidence established that the Respondent utilized unlicensed persons to perform electrical and plumbing work on the Complainants’ residence. 8. There was no dispute that when the Respondent was unable to comply with the Corrective Work Order within the fifteen day period set forth in the Corrective Work Order the Complainants allowed the Respondent an additional two weeks to complete the designated corrective work. 9. Credible testimony and evidence established that when the Respondent failed to comply with the Corrective Work Order within the additional two week time period the Complainants denied the Respondent further access to their residence. The Complainants’ actions in denying the Respondent further access to their residence are found to be reasonable and justified under the circumstances. 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 these homeowners. 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. The Respondent’s actions in aiding and abetting unlicensed persons to evade the provisions of the state’s contracting laws, 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. 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) (7) (Wrongful Act) and (10) (Aiding or abetting an unlicensed person to evade the provisions of this chapter) and (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 KB-01 license shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has utilizing a properly licensed contractor caused the terms and conditions of the written Corrective Work Order issued in this matter to be properly complied with. 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 instead the Respondent’s Class KB-01 license shall be suspended for a period of thirty days. It is further recommended in addition to the above-provided penalties, if any, that the 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 the 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 28, 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