ALJDEC decisions subject to certification as final

2007A-2881863-ROC · Registrar of Contractors · 2013-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: January 2, 2013 APPEARANCES: Complainant Mark Ferganchick was represented by Stephen C. Bergsten, Esq. Respondent L and L Contractors LLC was represented by Nikolaus G. Decker, Esq. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT In November 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.118896-R to L and L Contractors LLC (“Respondent”). In 2007, the Registrar received a complaint from Mark Ferganchick (“Complainant”) against Respondent regarding concrete work done by a subcontractor at his residence located at 120 South Houghton Road #138-318, Tucson, Arizona. The Registrar designated the complaint as Case No. P07- 0288. The Registrar issued a Citation and Complaint in Case No. P07-0288, charging Respondent with possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Case No. P07-0288 proceeded to hearing before Administrative Law Judge (“ALJ”) M. Douglas of the Office of Administrative Hearings (“the OAH”), an independent state agency. On or about June 5, 2009, ALJ Douglas issued an Administrative Law Judge Decision in Case No. P07-0288 that included the following Findings of Fact: 3. Credible testimony and evidence established that the Complainant then contacted the Respondent and contracted directly with the Respondent for the original concrete subcontractor for the residence to perform additional concrete work on the residence. 4. The concrete subcontractor then performed the agreed upon additional concrete work. . . . . 10. Credible testimony and evidence established that the concrete work in the Complainant’s residence fails to comply with applicable workmanship and industry standards and that the concrete work requires proper repair or replacement. The Respondent shall properly correct the concrete at the Complainant’s residence.

ALJ Douglas concluded in Case No. P07-0288 that Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[1] in the concrete work completed by a subcontractor. As a result, ALJ Douglas recommended that the Registrar suspend Respondent’s license until it provided proof that it had properly “caused the concrete work in the Complainant’s residence to be properly corrected.” ALJ Douglas recommended further that if Respondent submitted proof that was satisfactory to the Registrar that it had corrected the concrete work before the effective date of the final Order, the Registrar not suspend Respondent’s license but, instead, close Case No. P07-0288. On July 10, 2009, the Registrar accepted ALJ Douglas’s Administrative Law Judge Decision in Case No. P07-0288 and adopted the recommended order. Subsequently, the parties submitted conflicting information to the Registrar regarding Respondent’s compliance with the Certification in Case No. P07-0288. The Registrar redesignated Case No. P07-0288 as Case No. 2007-2881863. On September 19, 2012, the Registrar issued an Order Setting Compliance Hearing in Case No. 2009-4410858, in relevant part as follows: On July 10, 2009, the Registrar issued an Order in this matter providing that Respondent’s B.118896-R License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted written proof that Respondent had properly caused the concrete work in the Complainant’s residence to be properly corrected. If Respondent provided acceptable proof to the Registrar that it had fully accomplished the corrective action, on or before the effective date of the Order, then Respondent’s B.118896-R License would not be suspended and the matter would be closed. This Order had an effective date of August 19, 2009. On or about February 8, 2011, the Registrar suspended Respondent’s B.118896-R License in accordance with the terms of the Registrar’s June 5, 2009 Order. On or about February 15, 2012, Counsel for Respondent submitted Respondent’s Notice of No Access in this matter with the Registrar maintaining, among other things, that the Complainant “has not allowed access to [R]espondent to comply with the Order in this case.” Counsel required that the denial of access be treated as compliance with the terms of the July 10, 2009 Order by Respondent and that the disciplinary suspension be lifted. On or about March 7, 2012, Counsel for Complainant submitted Complainant’s Response to Respondent’s Notice in this matter with the Registrar maintaining, among other things, that the Complainant “denies that Complainant failed to allow access to the residence.” Upon review and consideration, and with good cause appearing, IT IS ORDERED that this case be set for a Compliance Hearing in the expedited course of docketing in the Show Low area to determine whether or not Complainant has unreasonably denied Respondent access to fully comply with the terms of the Registrar’s June 5, 2009 Order.

If it is determined that Respondent has made reasonable attempts to comply with the terms of the June 5, 2009 Order, but that Complainant has unreasonably denied Respondent access to fully comply with the terms of the Order, then the suspension imposed upon Respondent’s B.118896-R License will be lifted and this matter shall be closed. If it is determined that Respondent’s attempts at compliance have been insufficient and/or that Complainant has not unreasonably interfered with Respondent’s attempts at compliance, then Respondent’s B.118896-R License shall remain suspended. Note: A review of the Registrar’s files reveals that Complainant received monies from the Residential Contractors’ Recovery Fund in Case No. 2007-2877635. However, the payout was lodged against License No. KB-2.154063-D issued to Star Crest Construction, Inc. This payout does not obviate Respondent’s obligation to comply with the terms of the Registrar’s July 19, 2009 Order and to resolve any and all issues underlying the Citation and Complaint issued in this matter.

The Registrar referred the matter back to the OAH for a compliance hearing.

At the outset of the compliance hearing, counsel for Complainant indicated that Complainant did not want Respondent to do any further work for him and that Complainant did not want to pursue the matter any further. Complainant did not agree the corrective work that was ordered had been completed or that he had denied Respondent access to complete the corrective work. However, Complainant stipulated that he was willing to withdraw the underlying Complaint in this matter. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant’s withdrawal of the underlying Complaint in this matter rendered moot the issue of whether Respondent had completed the corrective work previously ordered. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Case No. 2007-2881863 (formerly Case No. P07-0288) against Respondent L and L Contractors LLC’s License No. B.118896-R. In the event of certification of the 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 that certification. Done this day, January 18, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] See 32-1101 et seq.

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