ALJDEC decisions subject to certification as final

08F-T1181-ROC · Registrar of Contractors · 2010-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondents appeared through their attorney, Denise H. Troy. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondents have fully complied with the terms and conditions of the previously entered Decision and Order of the Registrar. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made:

FINDINGS OF FACT 1. The prior Order of the Registrar of Contractors, which is currently on appeal to the Superior Court, provides in pertinent part, as follows: IT IS ORDERED suspending Respondents’ Class B- licenses on the effective date of this Order until the Registrar receives proof that Respondents have appropriately rectified the items involved and detailed in the Complaint and the Agency’s written directive. If Respondents properly correct these specified items on or before the effective date of this Order then Respondents’ licenses shall not be suspended and this Citation and Complaint shall be closed…If this Order provides for corrective work to be performed, the Respondents are advised that such work must be performed in a workmanlike manner and the Registrar is notified of the completion in writing on or before the effective date of this Order. The Respondents are also advised that no work may be performed by the Respondents that are outside the scope of the Respondents’ license(s), but as a result of this Order such work may be subcontracted to properly licensed contractors. The Respondents are further advised that if its license is suspended for administrative reasons, Respondents may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of its license has been lifted. If Respondents’ licenses remain suspended for administrative reasons or are revoked, expired, canceled, inactive or invalid, Respondents may not contract in any manner and may satisfy the corrective work provisions of this Order only by paying a properly licensed contractor hired by the Complainant to perform the corrective work or by a reaching a financial settlement with the Complainant. The Complainant is advised that any unreasonable denial of access to the Respondents or the Respondents’ proper agents or employees to perform the required corrective work may be treated as compliance by the Respondents and may result in the case being closed without discipline, and the Complainant may be denied access to the Contractors’ Recovery Fund, even if otherwise eligible. 2. The Order also provides as follows: NOTE: Counsel for Respondents may present the Registrar’s Order issued in Case No. T08-1214 in this matter for collateral estoppel purposes. 3. The Order in Case No. T08-1214 addressed the type of solar hot water installed in the Complainant’s residence. Based upon the Registrar’s Order issued in Case No. T08-1214, no corrective action by the Respondents for the solar hot water heater is found to be required. 4. The assigned Agency Inspector testified that he performed a prehearing inspection and found that Item No. 2 of the Complaint and the Corrective Work Order and Item No. 3 of the Complaint and the Corrective Work Order had not been fully complied with and that these two items required further corrective action by the Respondents. 5. Item No. 2 of the Complaint and the Corrective Work Order provides as follows: Complaint: “Interior is painted flat ILO semi-gloss.”- Contractor to correct per jobsite agreement. 6. The Inspector testified that the Respondents had caused the interior of the Complainant’s residence to be repainted but that there were minor texture problems in two of the upstairs bedrooms that required proper corrective action. 7. Credible testimony and evidence established that the Respondents have failed to fully comply with the terms and conditions of the prior Order regarding item No. 2. 8. Item No. 3 of the Corrective Work Order provides as follows: Complaint: “Backyard fence and mailbox have paint issues.” Contractor to correct per jobsite agreement. 9. The Inspector testified that further corrective action was required on the backyard fence and mailbox by the Respondents to bring these items within applicable industry and workmanship standards. 10. Credible testimony and evidence established that the Respondents have failed to fully comply with the terms and conditions of the prior Order regarding Item No. 3. 11. The Inspector testified that the Complainants had refused corrective action on Item No. 10 of the Corrective Work Order. 12. Item No. 10 of the Corrective Work Order provides as follows: Added at inspection with permission of contractor. - Refrigerator door hits edge of wall when opened more than 90 degrees. Contractor to correct by appropriate means. 13. Credible testimony and evidence presented at the Compliance Hearing established that the Respondents did offer to correct this item and that the Complainant denied the Respondents a reasonable opportunity to perform the offered corrective action based upon the Complainant’s opposition to the Respondents’ proposed method of repair. The Complainant’s action is found to constitute an unreasonable denial of access. No further corrective action by the Respondents is required regarding this item. 14. The Inspector testified that the remaining items of the Corrective Work Order either had been properly corrected or did not require any corrective action by the Respondents. 15. The Complainant disagreed with the Inspector’s testimony regarding Item Nos. 4 and 6 and 7 and 10 of her Complaint and the Corrective Work Order.

16. Item No. 7 of the Complaint and the Corrective Work Order provides as follows: Complaint: “carpet padding has hard spots.” Contractor to correct per jobsite agreement. 17. Credible testimony and evidence, presented at the Compliance Hearing, established that the Complainant has entered into an agreement with the carpet subcontractor for the correction of this item. No additional corrective action by the Respondents was shown to be necessary and the Respondents are found to be in compliance for this item. 18. Item No. 6 of the Complaint and Corrective Work Order provides as follows: Complaint: “Door lock issues at front and garage door.” No problem observed at inspection. No action required. 19. Credible testimony and evidence, presented at the Compliance Hearing, established that the door subcontractor has replaced the front door and that the Complainant now feels that the new front door has warped and requires proper correction. The warping of the new front door is not set forth in the Complaint and the alleged warping of the front door was not addressed in the Corrective Work Order because it was not an item of the complaint at that time. The Respondents are found to be in compliance regarding item No. 6 of the Complaint and the Corrective Work Order. 20. Item No. 4 of the Complaint and the Corrective Work Order provides as follows: Complaint: “a. Different Range (less expensive) than model. b. Upgraded refrigerator is 22.7 ILO 24.9 cu. ft.” Contractor states that homeowner is mistaken about the unit that was installed in the model. It has since been replaced and Inspector was unable to verify. The refrigerator was design change to counter depth model. Contractor submitted a page from contract that gives them a right to substitute items as “changes in product offerings.” No action required. 21. Credible testimony and evidence established that the Respondents have done nothing regarding item No. 4 of the complaint. The default Decision and Order issued in this matter requires “proof that Respondents rectified the items involved and detailed in the Complaint and the Agency’s written directive.” This item of the Complaint has not been fully complied with.

CONCLUSIONS OF LAW 1. Credible testimony and evidence presented during the compliance hearing supported findings that the Respondents have not fully complied with the terms and conditions of the prior Order of the Registrar of Contractors.

RECOMMENDed order on compliance hearing

In view of the foregoing, it is recommended that that the Respondents’ Class B- Licenses be suspended in accordance with the terms and conditions of the prior Order of the Registrar issued in this matter. 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 20, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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