ALJDEC decisions subject to certification as final

08F-T1248-ROC · Registrar of Contractors · 2009-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 2009 at 9:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Dennis A. Rosen. The Respondent appeared through its authorized representative, Louis Marson. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. These matters were consolidated for hearing since all of the Complainants were represented by the same attorney and were filed against the same Respondent. 2. All of the Complainants purchased town homes constructed by the Respondent. 3. The Respondent was the holder of a Class B- License No. 064861 when it constructed the Complainants’ townhomes. 4. All of the Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its construction work despite repeated requests from all of the Complainants that the Respondent properly perform corrective action on all of the residences at issue. 5. When the Respondent failed to comply with the Complainants’ repeated requests, the Complainants all filed formal Complaints against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaints an assigned Agency Inspector conducted on-site inspections at each of the residence at issue and issued written Corrective Work Orders for each of the residences at issue directing the Respondent to perform designated corrective work on all of the Complainants’ residences. 7. All of the homeowners retained the services of Mr. Phillip Rosenberg, a licensed contractor and home inspector, to perform his own inspection of each of the town houses at issue. 8. Mr. Rosenberg testified that he inspected each of the Complainants’ residences and that he concurred with the Corrective Work Orders issued by the Registrar of Contractors. 9. Credible testimony and evidence established that the Respondent’s workmanship on each of the Complainants’ townhomes failed to comply with applicable industry and workmanship standards. 10. There was no dispute that the Respondent failed to comply with any of the Corrective Work Orders issued in these matters. 11. The Respondent’s representative testified that the developer of the townhome projects should be responsible for the correction of the Respondent’s poor workmanship on the Complainants’ residences because the Complainants purchased all of their residences from the developer rather than the Respondent. 12. The Respondent’s representative also testified that the Respondent had not been fully paid by the developer for the residences at issue and should not be expected to correct its workmanship deficiencies because it had not been fully paid for the construction of the Complainants’ residences. 13. Credible testimony and evidence established that the Respondent’s representative and owner, Louis Marson, is also the owner of the Developer. 14. The Respondent’s assertion that it should not be responsible for the correction of its workmanship deficiencies on the basis that a separate entity owned by the essentially the same individuals that own the Respondent has failed to pay the Respondent is not a persuasive argument. 15. Credible testimony and evidence established that that the Respondent constructed all of the Complainants’ residences and that the Respondent is fully responsible for the correction of its poor workmanship on the Complainants’ residences. 16. The Respondent’s actions, in failing to perform its construction work in a professional and workmanlike manner and in failing to comply with the six Corrective Work Orders issued in these matters, is found to constitute a wrongful act. 17. 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 charged provisions of A.R.S. § 32-1154: (A)(7) (Wrongful Act); (A)(23) (Failure to take appropriate corrective action); and (A)(3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) for each and all of the matters at issue.

RECOMMENDed orders 1. In view of the foregoing, for Docket No. 08F-T1148-ROC (Case No. T08- 1148) it is recommended that the Respondent’s Class B- License be revoked. 2. In view of the foregoing, for Docket No. 08F-T1158-ROC (Case No. T08- 1158) it is recommended that the Respondent’s Class B- License be revoked. 3. In view of the foregoing, for Docket No. 08F-T1190-ROC (Case No. T08- 1190) it is recommended that the Respondent’s Class B- License be revoked. 4. In view of the foregoing, for Docket No. 08F-T1248-ROC (Case No. T08- 1248) it is recommended that the Respondent’s Class B- License be revoked. 5. In view of the foregoing, for Docket No. 08F-T1253-ROC (Case No. T08- 1253) it is recommended that the Respondent’s Class B- License be revoked. 6. In view of the foregoing, for Docket No. 08F-T1328-ROC (Case No. T08- 1328) it is recommended that the Respondent’s Class B- License be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $3,000.00 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 these Orders will be 40 days from the date of the certification. Done this day, August 7, 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