ALJDEC decisions subject to certification as final

2007A-5309015-ROC-com · Registrar of Contractors · 2011-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2011 at 10:00 a.m. APPEARANCES: The Complainants appeared through Laura Giddings. The Respondent appeared through its authorized representative, Ralph Sizemore. ADMINISTRATIVE LAW JUDGE: M. Douglas

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. The Respondent’s Class K-48 (No. 177110) License was suspended on August 1, 2010, for non-renewal. 2. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows: At the Compliance Hearing, the parties may offer evidence and testimony as to whether or not Respondent has complied with the Registrar’s Order, absent unreasonable interference or denial of access by Complainants. If it is determined that Respondent failed to fully comply with the terms of the Registrar’s May 23, 2008 Order, absent unreasonable interference or denial of access by Complainants, then its Class K-48 License shall be subject to the immediate imposition of discipline. 3. The Respondent asserted that it had completed its work on the Complainants’ tile floor in 2006 and that the matter should be dismissed because the Respondent’s two year warranty for its workmanship on the Complainants’ tile floor imposed by A.R.S. § 32-1155 (A) had expired. 4. On May 23, 2008, the Registrar issued its Order in this matter providing that commencing on the effective date of the Order, the Respondent’s License would be suspended until the Registrar received proof that Respondent had properly corrected the Complainants’ tile floor. 5. The Registrar’s Order had an effective date of July 2, 2008. 6. On June 27, 2008, the Respondent notified the Registrar that the Respondent had complied with the terms of the Registrar’s Order. 7. On July 2, 2008, the Complainants filed a response indicating that they were satisfied with the corrective work that the Respondent had performed on the residence. 8. The Registrar then closed this matter on July 23, 2008. 9. On June 22, 2009 the Complainants asked that the matter be reopened due to an alleged repair failure. 10. Credible testimony and evidence established that the Complainants request that the matter be reopened was filed within two years of the performance of the corrective work on their residence. 11. An assigned Agency Inspector performed an onsite inspection on February 15, 2011, just before the scheduled Compliance Hearing. 12. The Inspector testified that he observed a few loose tiles and several hollow sounding tiles in the area where the Respondent had performed corrective work on the Complainants’ tile floor. 13. There was no credible evidence of any denial of access or interference by the Complainants. 14. The credible evidence of record established that the Respondent has failed to fully comply with the terms Registrar’s May 23, 2008 Order. 15. 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 Registrar’s Order of May 23, 2008. On the contrary, credible testimony and evidence established that the Respondent has repeatedly failed to properly accomplish compliance with the terms of the prior Order. 16. Credible testimony and evidence established that a licensed contractor, such as the Respondent, 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. 17. Credible testimony and evidence established that the Respondent should not be allowed to wreak any further havoc on the lives of these homeowners and that no further opportunities to perform corrective action on the Complainants’ tile floor should be provided to the Respondent in this matter. CONCLUSIONS OF LAW 1. Credible testimony and evidence presented during the compliance hearing supported findings which establish that the Respondent has not fully complied with the terms of the Registrar’s Order of May 23, 2008. RECOMMENDed order on compliance hearing In view of the foregoing, it is recommended that the Respondent’s 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, February 24, 2011.

/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