ALJDEC decisions subject to certification as final

2009A-20951555-ROC · Registrar of Contractors · 2010-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Curtis Wall. The Respondent appeared through its authorized representative, Lawrence Hutcheson. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has fully complied with the terms 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. The Order Reopening Complaint and Setting Compliance Hearing provides, in relevant part, as follows: At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has fully complied with the terms of the parties’ Settlement Agreement, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent has failed to fully comply with the terms set forth in the Settlement Agreement, absent unreasonable interference or denial of access by Complainant, then Respondent’s Class KA-05 License No. 202697 may be subject to the immediate imposition of discipline. 2. There was no dispute that the on January 19, 2009 the Respondent began the agreed upon corrective work on the Complainant’s swimming pool. 3. There was no dispute that the corrective work consisted of draining the swimming pool, saw cutting out the brown stained plaster, applying a Thoroseal plaster mix to the epoxy and applying new plaster to the saw cut areas. 4. There was no dispute that the corrective work was completed on January 23, 2009. 5. Credible testimony and evidence, presented at hearing, established that the unacceptable brown staining has been removed. 6. Credible testimony and evidence, presented at hearing, established that the new plaster used to cover the saw cut areas is a different color than the rest of the plaster in the swimming pool resulting in long grayish stripes on the swimming pool plaster. 7. Credible testimony and evidence established that the presence of long grayish stripes on the plaster of the swimming pool plaster fails to comply with applicable workmanship and industry standards and that further corrective action is necessary in order to bring the Complainant’s swimming pool plaster to within applicable workmanship and industry standards. 8. The credible evidence of record established that the Respondent has failed to fully comply with the terms and conditions of the parties’ Settlement Agreement. 9. The Respondent contends that the corrective work that was performed on the Complainant’s swimming pool was the best that can be performed and that no further corrective action can provide a better color match with the existing plaster in the Complainant’s swimming pool short of removing and replacing all of the plaster in the Complainant’s swimming pool. 10. Credible testimony and evidence, presented at hearing, established that workmanship deficiencies must be corrected to within applicable workmanship and industry standards notwithstanding the amount of work that is required to correct the deficiencies or substandard construction work. 11. 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 take all measures necessary to fully comply with the terms of the parties’ Settlement Agreement. 12. 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. 13. Although the Registrar of Contractors often allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to a compliance hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of the Complainant homeowner association. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed contractor of the Complainant’s choice to correct the plaster in the Complainant’s swimming pool. 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 and conditions of the prior Order of the Registrar of Contractors. RECOMMENDed order on compliance hearing In view of the foregoing, it is recommended that the Respondent’s License No. KA-5.202697-D be revoked 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 correct the plaster in the Complainant’s swimming pool. 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 31, 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