ALJDEC decisions subject to certification as final

09F-T0224-ROC · Registrar of Contractors · 2009-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 2009 at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, David Harroun. 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’s Class B-05 License has been suspended for non-renewal by the Registrar of Contractors. 2. There was no dispute that the Respondent constructed a new swimming pool for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its alleged workmanship problems despite the Complainant’s demand that it do so. 4. When the Respondent refused to comply with the Complainant’s demand, the Complainant then 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 reviewed the matter and moved to close the case on the following basis: Based on the information given us in the complaint that the act was committed more than two years prior to the date of filing the complaint, we must decline to take action in this matter. 6. The Complainant disagreed with the Inspector’s action and requested an administrative hearing. 7. There was no dispute that the contract between the parties was entered into on September 27, 2006. 8. Credible testimony and evidence established that the Complainant’s swimming pool was completed during the month of February, 2007. 9. The Complaint at issue was filed on August 25, 2008. 10. The Complaint is found to have been filed within two years of the date the Complainant’s swimming pool was completed. 11. Credible testimony and evidence established that the Respondent utilized an unlicensed person as concrete subcontractor for the installation of a portion of the decking around the Complainant’s swimming pool. 12. Credible testimony and evidence established that the Complainant was initially dissatisfied with the height of the concrete decking installed by the Respondent and entered into an agreement with the unlicensed person employed as a subcontractor by the Respondent to add another concrete layer on top of the concrete decking installed by the Respondent. 13. Credible testimony and evidence established that the both the Complainant and the Respondent knew that the unlicensed person was not a licensed contractor when the Complainant hired the unlicensed person to perform additional concrete work on his swimming pool. 14. Credible testimony established that there are several small hollow areas in the concrete decking installed by the unlicensed person. 15. The credible evidence of record is insufficient and fails to support a finding regarding the concrete deck’s drainage. 16. Credible testimony and evidence established that the Respondent knowingly employed an unlicensed person as a concrete subcontractor for the construction of the Complainant’s swimming pool and knew that the Complainant had entered into an agreement with the unlicensed person to perform additional concrete work on the Complainant’s concrete deck. 17. Credible testimony and evidence established that the Respondent aided and abetted the unlicensed person to enter into a construction agreement with the Complainant to perform construction work on the Complainant’s concrete deck. 18. The Respondent’s actions, in aiding and abetting an unlicensed person to perform concrete work on the Complainant’s concrete deck and in knowingly allowing the unlicensed person to enter into a contract with the Complainant to perform additional concrete work on the Complainant’s concrete deck, are found to constitute a wrongful act. 19. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Credible testimony and evidence supported a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154: (A)(7) (Wrongful act) and (A)(3) (Failure to perform work in a professional and workmanlike manner). 2. The credible evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. § 32-1154 (A)(1) (Abandonment) as charged in the Citation.

RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s B-05 License be revoked. 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, August 19, 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