ALJDEC decisions subject to certification as final

09F-S0231-ROC · Registrar of Contractors · 2010-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Fernando Galindo. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT

1. The Respondent is the holder of a Class C-7 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed steel framing work on a new steel residence being constructed for the Complainant. 3. There was no dispute that the construction of the steel frame residence was beyond the scope of the Respondent’s Class C-07 License. The Respondent asserted that it was performing the construction work “under the general contractor’s Class B- License.” 4. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to within industry and workmanship standards despite repeated the Complainant’s repeated requests that the Respondent do so. 5. 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. 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. 7. The Respondent declined to comply with the terms and conditions of the Corrective Work Order on the basis that the Complainant’s general contractor had failed to fully pay the Respondent for the Respondent’s construction work on the Complainant’s residence and that the Complainant’s general contractor had accepted the Respondent’s construction work. 8. Credible testimony and evidence established that the Respondent knowingly entered into a construction project to perform construction work that was beyond the scope of the Respondent’s Class C-07 License. 9. Credible testimony and evidence established that the quality of the Respondent construction work on the Complainant’s residence was of very poor quality and that the Respondent’s construction work was below applicable workmanship and industry standards. 10. Credible testimony and evidence established that when the Respondent failed to comply with the terms and conditions of the Corrective Work Order the Complainant retained alternative contractors to correct the residence to the point where the Complainant could obtain a certificate of occupancy in order to actually live in the residence. 11. Credible testimony and evidence established that the Complainant spend more than $100,000.00 in an attempt to the correct the deficiencies in the Complainant’s new residence. 12. Credible testimony and evidence established that the Respondent failed to perform its construction work in accordance with applicable plans and specifications. 13. Credible testimony and evidence established that the Complainant’s steel building was constructed “out of square” and that as a consequence the steel residence has many deficiencies which can not now be corrected short of tearing the residence down and starting over. 14. The Complainant’s actions, in retaining alternative contractors to attempt to complete and correct the construction of the Complainant’s steel residence, are found to be reasonable and justified under the circumstances. 15. The Respondent’s actions, in knowingly performing construction work beyond the scope of the Respondent’s Class C-07 License and in failing to perform its work in a professional and workmanlike manner and in failing to comply with the terms and conditions of a Corrective Work Order, are found to constitute a wrongful act. 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. § 32-1154A(2) (Departure from or disregard of plans and specifications); 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).

RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s Class C-07 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, February 2, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826