ALJDEC decisions subject to certification as final

08F-Y0249-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2009; 1:30 p.m. APPEARANCES: Complainants Mr. Phillip and Ms. Eloise Rangel represented themselves. Respondent Fortezza Imports, LLC dba Fortezza Stone failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Fortezza Imports, LLC dba Fortezza Stone is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class K-61 License number 240777. 2. Complainants Mr. Phillip and Ms. Eloise Rangel contracted with Respondent in October of 2007 for Respondent to install new floor tile and granite countertops and backsplash in their Yuma, Arizona residence. Complainants have paid Respondent $27,155.00 toward the contract price, which was only slightly more than that figure. 3. Following the installation by Respondent, the Complainants were dissatisfied with several aspects of the work and filed the instant Complaint in the Registrar of Contractors’ Yuma office on April 24, 2008. 4. The Complaint was assigned to Registrar of Contractors Inspector Daryl McCloskey who scheduled and conducted a job site inspection on May 6, 2008. Complainants were present for the inspection, but Respondent failed to appear. 5. As a result of his inspection, Inspector McCloskey issued a written Corrective Work Order (CWO) to Respondent dated May 7, 2008. The CWO directed the Respondent to make several corrections to the work it had performed at Complainants’ home and to do so within 15 calendar days, which was a reasonable amount of time. Inspector McCloskey issued an amendment to the CWO dated May 9, 2008. The original CWO listed 12 defective items and the amendment added an additional item in need of correction. 6. Despite Complainants’ considerable efforts and accommodations to Respondent, Respondent failed to make any substantial efforts to correct the defective tile and countertop/backsplash installation for several weeks. Not until mid-July 2008 did any significant corrective work begin. 7. The work that the Respondent did perform to correct its defective installation was not only inadequate, but caused even more damage to the Complainants’ home. 8. Inspector McCloskey testified at the hearing that he conducted a pre-hearing inspection on May 1, 2009. He testified that much of the corrective work he had ordered had not been properly performed, some had been only partially performed, and some had been defectively performed. He further testified to the additional damage done to Complainants’ home as a result of the Respondent’s botched efforts to make corrections. 9. It appears from the total evidence that this Respondent is, and remains, incompetent to perform this job. It further appears that the work is outside the scope of the Respondent’s Class K-61 License. A Class B-3 license (General Remodeling and Repair) would be required to perform this job. 10. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. The subject license was not issued until January 18, 2008. This means that Respondent was not only contracting beyond the scope of its license after that date, but had no license at all at the time the parties entered into the contract. CONCLUSIONS OF LAW 1. The administrative hearing of this matter was held pursuant to and in accordance with A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.7, 17, 20, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.3 (namely A.A.C. R4-9-108), and 23 by its very poor workmanship in the Complainants’ home, and its failure to properly correct the work as directed by the Inspector in his CWO and amendment thereto. 4. The evidence proved that Respondent was contracting beyond the scope of its license in violation of A.R.S. § 32-1154.A.17. 5. The evidence proved facts which, had they been known at the time the Registrar issued the subject license, would have been grounds for the Registrar to deny issuance of the license in violation of A.R.S. § 32-1154.A.20. 6. There is no additional evidence of any wrongful or fraudulent act to prove a violation of A.R.S. § 32-1154.A.7, independent of the other violations concluded to have occurred. 7. A.R.S. § 32-1156.01 does allow the Administrative Law Judge to recommend that a licensee make restitution to injured parties as a condition of continued licensure. However, the facts of this case are so egregious as to warrant unconditional revocation of the subject license. Complainants may proceed to file a claim in the Arizona Registrar of Contractors’ Residential Contractors’ Recovery Fund, and if all eligibility requirements are met, seek and receive an appropriate award for the Fund. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class K-61 License number 240777 be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 15, 2009.

______________________________________ Grant Winston 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