ALJDEC decisions subject to certification as final

09F-T0258-ROC · Registrar of Contractors · 2009-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 27, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, John B. Evans. 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. Respondent is the holder of a Class C-07 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent submitted a proposal and performed concrete work to “temporarily shore up north west corner of house and remove columns, rove concrete and re-pour two footings and corner of patio slab” at the Complainant’s new residence. 3. The Complainant was dissatisfied with the Respondent’s concrete workmanship and filed a formal complaint against the Respondent with the Registrar of Contractors. 4. 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. 5. The Respondent refused to comply with the terms and conditions of the Corrective Work Order and after the time limit set forth in the Corrective Work Order had expired the Complainant retained an alternative licensed contractor to properly correct the problems with the Respondent’s concrete work. 6. Credible testimony and evidence established that the Respondent knowingly contracted beyond the scope of the Respondent’s Class C-7 (Carpentry) License. 7. The Workmanship Standards for Licensed Contractors February 2009, page 8, provides as follows: The contractor should be responsible to correct or ensure correction of settling or heaving if compaction is not according to the licensed soils engineer’s report… 8. Credible testimony and evidence established that the Respondent accepted the complainant’s soil as being adequate for the concrete work at issue and caused its out of scope concrete work to be performed without obtaining a licensed soils engineer’s report. 9. Credible testimony and evidence established that the Respondent’s concrete work failed to comply with applicable workmanship and industry standards. 10. Credible testimony and evidence established that the Respondent’s concrete work has now been corrected by an alternative licensed contractor and no further corrective action is required. 11. Credible testimony and evidence established that the Complainant paid the alternative contractor $10,537.70 to allegedly correct the Respondent’s concrete work and an additional $2,950.00 for the construction of two additional concrete piers. 12. There was no credible evidence presented to establish that the Complainant attempted to obtain bids from other licensed contractors for the performance of the corrective action set forth in the Corrective Work Order issued in this matter. 13. The Complainant’s seeks an order of restitution for the $10,537.70 that the Complainant paid the alternative licensed contractor to allegedly correct the Respondent’s concrete work. 14. The Respondent sharply disputes the reasonableness of the amount of money that the alternative contractor charged the Complainant to allegedly correct the Respondent’s workmanship and the Respondent asserts that it is entitled to an offset for the amount that is still due and owing under the parties’ construction agreement. 15. Credible testimony and evidence established that the Complainant has not been fully paid the Respondent for its concrete work on the Complainant’s residence and that the sum of $3,220.00 is still owed to the Respondent under the terms of the parties’ written agreement. 16. The parties’ dispute regarding the amount of money claimed by the Complainant as restitution for his costs of allegedly correcting the Respondent’s concrete work is found to be a good faith dispute which will necessarily involve a monetary adjudication and which should be resolved in a civil court of competent jurisdiction. 17. The Respondent’s actions, in performing concrete work beyond the scope of its Class C-07 License and in failing to perform its concrete 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. 18. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 (A)(7) (Wrongful Act) and A.R.S. § 32-1154 (A)(17) (Knowingly contracting beyond the scope of the license of the licensee) and A.R.S. § 32-1154 (A)(23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (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 commencing on the effective date of the Registrar’s order that the Respondent’s Class C-07 License shall be suspended for a period of twenty (20) days. It is further recommended, in addition to the above-provided penalty, 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, August 27, 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