ALJDEC decisions subject to certification as final

2007A-5208503-ROC-com · Registrar of Contractors · 2010-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Robert A. Miller. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms and conditions of the parties’ Settlement Agreement. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. This matter initially came on for an administrative hearing on May 6, 2008. The hearing did not conclude and the case was set for further hearing to commence on August 5, 2008. 2. The parties reached a Settlement Agreement just prior to the onset of the scheduled further hearing and on August 5, 2008, the Administrative Law Judge issued an ORDER VACATING HEARING Re: SETTLEMENT 3. The ORDER VACATING HEARING Re: SETTLEMENT provides, in pertinent part, as follows: The parties reached a settlement shortly before the hearing. The general terms of the settlement are: 1. The Respondent shall correct the 7/16” dip in the patio area; 2. Repair and fill in concrete which was not extended between the block wall and patio: 3. Construct the fourth wall as required by Dewey-Humboldt; 4. Electrical work is to be completed by a properly licensed contractor. 5. Finish nailing and caulking; 6. Prepare the swale for proper drainage away from foundation; 7. Finish trim molding of the interior storage room doors; 8. Complete the above by September 15, 2008. (Footnotes omitted) 4. On August 25, 2008, the Registrar issued an Order of Closing in this matter based upon the parties’ Settlement Agreement. 5. On October 3, 2008, the Complainant, by and through her then counsel of record, submitted a Request for Compliance Hearing in this matter with the Registrar of Contractors. 6. A representative from the Legal Department of the Registrar of Contractors then contacted the Complainant and requested additional information. 7. On December 3, 2009, the Complainant, by and through her then counsel of record, submitted a second, more detailed, request for Compliance Hearing. 8. The Complainant’s second, more detailed, Request for Compliance Hearing provides, in relevant part, as follows: Respondent failed to complete the work as follows: 1. The 7/16” dip in the patio area was not satisfactorily repaired; 2. The repair and fill in of concrete not extended between the block wall and patio was not satisfactorily repaired; 3. Construction of the fourth wall required by Dewey-Humboldt was never attempted or completed; 4. Electrical work required was never attempted or completed; 5. The caulking required was not completed. 6. Preparation of the swale for proper drainage was not properly completed. 9. The Registrar’s Order Reopening Complaint and Setting Compliance Hearing provides, in relevant part, as follows: At the Compliance Hearing, the parties’ [sic] may offer evidence and testimony as to whether or not Respondent has complied with the terms set forth in the parties’ Settlement Agreement. If it is determined that Respondent has not complied with the terms of the Settlement Agreement, Respondent’s Class B License No. 222247 may be subject to the immediate imposition of discipline. 10. Prior to the Compliance Hearing, an assigned Agency Inspector conducted a prehearing inspection and submitted a written report. 11. The Inspector’s written report states that the Respondent has complied with Item Nos. 2, 4, 5, 6 and 7 of the parties Settlement Agreement and that the Respondent has performed corrective work on item No. 1 but that further corrective action is required to bring Item No. 1, to within applicable workmanship and industry standards and that the Respondent has performed no corrective work on Item No. 4 of the parties’ Settlement Agreement. 12. The Complainant testified that the only item that the Respondent had satisfactorily completed was Item No. 7 (Finish trim molding of the interior storage room doors). 13. The Complainant testified that she had paid an alternative contractor to properly correct Item No. 4 (Electrical work to be completed by a properly licensed contractor), Item No. 5 (Finish nailing and caulking), and Item No. 6 (Prepare the swale for proper drainage away form foundation). 14. The Complainant testified that the Respondent’s corrective work on Item No. 1 (The 7/16” dip in the patio area) and Item No. 2 (The concrete which was not extended between the block wall and patio) failed to comply with applicable workmanship and industry standards and that further corrective action on these two items was required. 15. The Complainant testified that the Respondent performed no work on Item No. 3 (Construct the fourth wall as required by Dewy-Humbolt). 16. The Respondent testified that the Respondent was willing to return and perform further work on Item No. 1 (the correction to the dip in the patio area) and willing, if necessary, to construct the fourth wall to comply with Item No. 3 of the parties’ Settlement Agreement. 17. The Respondent testified that the construction of the fourth wall was really not a code requirement by Dewey-Humbolt. 18. The Respondent asserted that the Complainant had denied the Respondent reasonable access to the Complainant’s residence to complete the corrective work on Item No. 1 (the dip in the concrete) and Item No. 3 (Construct the fourth wall). 19. Credible testimony and evidence, presented at hearing, established that the Complainant has, at her own expense, caused properly licensed contractors to correct Item No. 4 (Completion of electrical work) and Item No. 5 (Finish nailing and caulking) and Item No. 6 (Prepare the swale for proper drainage) of the parties’ Settlement Agreement. 20. The credible evidence of record is insufficient and fails to support a finding as to the Complainant’s costs of causing the proper correction of Item Nos. 4, 5, and 6 of the parties’ Settlement Agreement. 21. Credible testimony and evidence established that the Respondent’s corrective work on Item No. 1 (The correction of the 7/16” dip I the patio area) failed to comply with applicable workmanship and industry standards and that the concrete patio area requires proper repair or replacement. 22. Credible testimony and evidence established that the Respondent has performed no corrective action in Item No. 3 (construct the fourth wall) of the parties’ Settlement Agreement. 23. Credible testimony and evidence established that the Respondent agreed to properly construct the fourth wall in the parties’ Settlement Agreement. 24. There was no credible evidence of any unreasonable denial of access by the Complainant. 25. The credible evidence of record established that the Respondent has failed to fully comply with the terms of the parties’ Settlement Agreement. 26. Credible evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the parties’ Settlement Agreement. On the contrary, credible evidence of record establishes that the Respondent has repeatedly failed to properly accomplish compliance with the terms of the Settlement Agreement and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the parties’ Settlement Agreement which the Respondent freely entered into. 27. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities to comply with specified conditions which reduce, eliminate, or terminate disciplinary action against the contractor’s license. 28. This Respondent should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition that may placed into this Order for the purpose of allowing the Respondent any additional opportunity to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Complainant’s choice to fully comply with the terms of the parties Settlement Agreement. 29. Notice is taken of the Respondent’s prior good license record with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. Credible testimony and evidence presented during the compliance hearing supported findings that establish that the Respondent has not fully complied with the terms of the parties’ Settlement Agreement.

RECOMMENDed order on compliance hearing In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be revoked on the effective date of this Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms of the parties’ Settlement Agreement. It is further recommended that if the Respondent, utilizing a properly licensed contractor of the Complainant’s choice, causes the proper accomplishment of the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead the Respondent’s Class B- License shall be placed on disciplinary probation for a period of thirty (30) days. 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, September 24, 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