ALJDEC decisions subject to certification as final

09F-S0026-ROC · Registrar of Contractors · 2009-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative and qualifying party, Manual Martinez. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and 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 B-03 License issued by the Registrar of Contractors. 2. This is a residential matter wherein Manual Martinez performed construction work on the Complainant’s residence. 3. Credible testimony and evidence established that the Complainant paid $2,300.00 to Manual Martinez for the construction work that he performed on her residence. 4. There was no dispute that the Manual Martinez that performed the construction work on the Complainant’s residence, received $2,300.00 from the Complainant and is the same Manual Martinez that is a member and qualifying party of the Respondent. 5. The Complainant was dissatisfied with Mr. Martinez’s workmanship and with his failure to complete his construction work. 6. When the Complainant was unable to contact Mr. Martinez, she filed a formal Complaint against Manual Martinez with the Registrar of Contractors. 7. The Registrar of Contractors then processed the Complainant against the Respondent’s Class B-03 License. 8. 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. 9. The Respondent denied responsibility for the work at issue and failed to comply with the terms and conditions of the Corrective Work Order. 10. Credible testimony and evidence established that the Complainant’s oral construction agreement was with the Respondent and that the construction work performed by Mr. Martinez was performed under the Respondent’s Class B-03 License. 11. There was no dispute that the Respondent is not properly licensed to perform the corrective action set forth in the Corrective Work Order. 12. There was no dispute that the Respondent failed to utilize its full license number on its letterhead in a written communication directed to the Registrar of Contractors. 13. Credible testimony and evidence established that the Respondent failed to utilize a written contract for its agreement with the Complainant as required by applicable statute. 14. Credible testimony and evidence established that the Respondent knowingly contracted for construction work that was beyond the scope of the Respondent’s Class B-03 License. 15. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner and in knowingly contracting beyond the scope of its Class B-03 License and in failing to utilize a written contract and in failing to comply with the terms and conditions of a Corrective Work Order, are found to constitute a wrongful act. 16. 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 this Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause a properly licensed contractor to comply with the terms and conditions of the Corrective Work Order issued in this matter. 17. Notice is taken of the Respondent’s prior good 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)(1) (Abandonment or refusal to perform); (A)(7) (Wrongful Act); (A)(23) (Failure to take appropriate corrective action); (A)(3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) and (A)(13) (Namely: A.R.S. § 32-1124 (B) (Failure to properly place proper license number on letterhead).

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 B-03 License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor to comply with the terms and conditions of the written Corrective Work Order issued in this matter. 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, September 9, 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