ALJDEC decisions subject to certification as final

08F-Y0225-ROC · Registrar of Contractors · 2009-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2009 at 9:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Jason Martin. 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 K-37 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed water damage construction work on the Complainant’s rental residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite the Complainant’s repeated requests that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant 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 issued a written Corrective Work Order (CWO) directing the Respondent to perform designated corrective work on the Complainant’s rental residence. 6. The CWO provides as follows: “THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS AND WITH AN APPROPRIATE LICENSED CONTRACTOR FOR THE SCOPE OF WORK THE FOLLOWING ITEMS: 1. The soft floor and/or sub floor in the hallway. 2. The soft floor and/or sub floor in the bathroom.” 7. Credible testimony and evidence established that that the Respondent contracted for and performed construction work beyond the scope of the Respondent’s Class K-37. 8. Credible testimony and evidence established that the Respondent failed to utilize a properly licensed contractor to perform the designated corrective work and that instead the Respondent again performed construction work on the floor and subfloor of the Complainant’s rental residence. 9. Credible testimony and evidence established that the Respondent failed to properly comply with the terms and conditions of the CWO. 10. Credible testimony and evidence established that the vinyl flooring that the Respondent installed over the Complainant’s floor and subfloor was not installed in a professional and workmanlike manner. 11. There was no dispute that the Respondent had agreed to cause the proper replacement of the vinyl flooring in the Complainant’s rental residence. 12. Credible testimony and evidence established that when the Respondent failed to replace the floor vinyl the Complainant caused the improperly installed floor vinyl to be removed and replaced at a cost of $521.93. 13. The Complainant’s actions in removing and replacing the improperly installed floor vinyl when the Respondent failed to comply with its agreement were shown to be reasonable and justified under the circumstances. 14. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner, in repeatedly performing construction work beyond the scope of its Class K-37 License, in failing to replace the floor vinyl in accordance with its agreement to do so and in failing to comply with terms and conditions of a written CWO, are found to constitute a wrongful act. 15. 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 life of this homeowner. Thus any condition placed into this Order for the purpose of allowing 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 inspect and if necessary correct the floor and subfloor of the Complainant’s rental residence. 16. 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 (17) (Knowingly contracting beyond the scope of the license or license of the licensee) 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 K- License shall be revoked unless the Registrar of Contractors receives and accepts written proof that: (1) 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; and the Respondent has, as restitution for the cost of the replacement floor vinyl, paid the Complainant the sum of $521.93. 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 this matter be closed. 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, April 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