ALJDEC decisions subject to certification as final

08F-Y0221-ROC · Registrar of Contractors · 2009-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2009 at 1:30 p.m. APPEARANCES: The Complainants appeared through Lorena O’Rourke. The Respondent appeared through its attorney, Dee R. Giles. 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 KA-05 license issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the parties entered into a construction agreement wherein the Respondent contracted to perform landscaping and concrete work and to construct a fountain/spa in the Complainants’ backyard for $27,150.00. 3. There was no dispute that the Complainants have paid the Respondent $22,000.00 for the agreed upon construction work. 4. In March 2008 the Respondent left a change order on Mrs. O’Rourke’s windshield advising that balance due for the construction project was the sum of $25,180.00. 5. The Complainants were very dissatisfied with the Respondent’s action and filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. 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. The Corrective Work Order provides in pertinent part as follows: 1. Complete the fountain/spa as per agreement and to code. 2. Complete the flagstone patio and step as per agreement. 3. Complete the landscaping as per code and by a properly licensed contractor. 4. Complete the bar/grill as per code and by a properly licensed contractor. 5. Obtain a City of Yuma building permit. 7. There was no dispute that the local building authority issued a stop work order for the construction project. 8. On April 24, 2008 the City of Yuma issued a letter which provides as follows: A stop work order was placed on 3156 W. 16th Lane due to your having installed water, gas and electrical for a spa you were attempting to build without a permit. All of those installations would have required plans and permits as well as inspections. You were notified by me verbally as well as with the stop work order to obtain these permits. You have failed to do so as of this date. This is a violation of the City of Yuma 2003 International Residential Code, R105.1. You have twenty (20) days from date of this letter to submit plans for the required permits. Failure to do so will result in a report and complaint request being forwarded to the City of Yuma Prosecutor for review. 9. Credible testimony and evidence established that the Respondent failed to comply with the terms and conditions of the Corrective Work Order. 10. Credible testimony and evidence established that applicable building code precludes the completion of the construction of the spa/fountain in its current location. 11. The Respondent’s actions, in failing to obtain required building permits, in knowingly contracting for the performance of construction work beyond the scope of the Respondent’s KA-05 license, in performing work that the Respondent was not licensed to perform and in failing to perform its work in workmanlike manner, 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)(2) (Departing from or disregarding any building codes of the state or any political subdivision of the state); (A)(7) (Wrongful Act); (A) (17) (Knowingly contracting beyond the scope of the Respondent’s license); (A) (23) (Failure to take appropriate corrective action) and (A)(3); namely, Rule R4-9-108 (Failure to perform work in a proper workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s Class KA-05 license be revoked. 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, June 24, 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 ___________________________

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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