ALJDEC decisions subject to certification as final

09F-Y0243-ROC · Registrar of Contractors · 2010-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2010 at 1:15 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Maria Duran. 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 KB-02 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a gazebo for the Complainant. 3. The Complainant was dissatisfied with the Respondent’s workmanship and requested his money back. 4. When the Respondent failed to comply with the Complainant’s request the Complainant 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 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. 6. Credible testimony and evidence established that the Respondent failed to fully comply with the terms and conditions of the Corrective Work Order because Item No. 3 of the Corrective Work Order had not been fully corrected. 7. In addition to the items set forth in the Corrective Work Order the Complainant presented a list of punch-list type items that were not set forth on the original complaint, including gaps in roof tile, wrong color roof grout, vents in the roof, one can light being the wrong color, a splintered fascia board, a poorly repaired hole in the concrete slab, missing weather stripping from an electrical switch that had not been corrected by the Respondent. 8. The Respondent did not object to the presentation of the punch list type items and the amendment of the complaint to include the punch list type items. 9. Credible testimony and evidence established that the Respondent should properly correct the wrong colored can light and properly correct the splintered fascia board and correct the poorly repaired concrete hole and replace the missing weather stripping for the electrical switch and properly touch up around the electrical outlets, the electrical switch and the bases of the four columns. 10. The credible evidence of record was insufficient and failed to support a finding that the remaining items of the punch list fail to comply with applicable industry and workmanship standards. 11. During the course of construction the parties have developed a very adversarial relationship and have a great deal of difficulty in effectively communicating. However, although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of the new gazebo are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to complete necessary remedial work. . 12. 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 provisions of A.R.S. § 32-1154A(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 commencing on the effective date of the Registrar’s order that the Respondent’s Class KB-02 License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms and conditions of the written Corrective Work Order issued in this matter and that the Respondent has properly corrected the wrong colored can light, the splintered fascia board, the weather stripping for the electrical outlet, and that the Respondent has properly touched up around the electrical boxes, electrical outlets, electrical switches and the basis of the four columns of the Gazebo. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension 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 $250.00 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, March 3, 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