ALJDEC decisions subject to certification as final

2009A-316087-ROC · Registrar of Contractors · 2010-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2010 APPEARANCES: John McEwan appeared personally. Fuentes Finish Concrete, L.L.C. was represented by its authorized representative, Bernardo Gomez Fuentes. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Fuentes Finish Concrete, L.L.C. (“Respondent”) is the holder of License No. 213047, a Class C-09 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On July 15, 2008, John McEwan (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on a river rock planters project at Complainant’s residence located at 6233 Tournament Trial, Prescott Valley, Arizona. The Registrar originally designated the Complaint as Case No. A09-0031 but re-designated it as Case No. 2009-316087. 3. In response to the filed Complaint, the Registrar’s assigned inspector, John Prince, performed a jobsite inspection at Complainant’s residence to view the subject three river rock planters. As a result of that inspection, Inspector Prince issued a Corrective Work Order dated August 21, 2008, which addressed the Complaint item as follows: License # 213047 issued to Fuentes Finish Concrete L L C was suspended for non-renewal on 12-1-07 and cannot do or sub- contract the following corrective work until the suspension is lifted.

Contractor to correct by appropriate means and do in a good workmanlike manner the following items:

Item #1. Poor workmanship to all three river rock planters.

No work for the contractor on the following item: (Reason) His license is suspended for non-renewal but he is still considered a licensed contractor.

Item #2. Not a license [sic] contractor.

(Emphasis in the original).

4. On February 19, 2009, the Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (2), (7), (18), (23), and (3), namely A.A.C. R4-9-108. 5. On August 6, 2009, the Registrar issued a default Decision and Order due to Respondent’s failure to file an answer to the Citation and Complaint. 6. Respondent timely requested a rehearing. The Registrar subsequently granted Respondent’s request for rehearing based upon Respondent’s claim that its mail had been stolen. 7. Respondent sent Complainant an undated letter seeking permission to perform the required remedial repairs. Complainant evidenced his acceptance of Respondent’s offer by signing the document and adding the following language: “as long as wall is fixed.” 8. Respondent has not complied with the Registrar’s written directive to perform remedial action to the three river rock planters. 9. At hearing, Complainant provided credible evidence that the planters were specified to be constructed 21 inches in height. Respondent constructed them 15-16 inches in height. 10. Complainant also testified that there is some damage to a wall caused by Respondent’s workmanship. That issue was not raised in Complainant’s Complaint. Therefore, that issued is determined to be outside the scope of the instant hearing. 11. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 213047 is current. Respondent’s license was suspended by operation of law for nonrenewal from December 1, 2007 to September 2, 2008. Respondent contracted with Complainant and performed its scope of work in June 2008, while Respondent’s contracting license was suspended. 12. Respondent’s failure to comply with the Registrar’s written directive to repair its deficient workmanship and Respondent’s contracting while its contracting license was suspended by operation of law constitute wrongful acts resulting in substantial injury to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license as described in the above Findings of Fact does not deprive the Registrar of the authority to impose discipline upon Respondent’s contracting license for proven statutory and/or regulatory violations committed by Respondent during the period of suspension. 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (7), (18), (23), and (3), namely A.A.C. R4-9-108, as alleged in the Citation and Complaint issued by the Registrar. 4. Pursuant to A.R.S. § 32-1154(D), the Registrar is authorized to impose a civil penalty upon Respondent’s contracting license for violating the provisions of A.R.S. § 32-1154(A) (23). 5. Pursuant to A.R.S. § 32-1154(E), the Registrar is authorized to impose a civil penalty upon Respondent’s contracting license for violating the provisions of A.R.S. § 32-1154(A) (18). RECOMMENDED ORDER Respondent’s License No. 213047 shall be revoked on the effective date of the Order entered in Case No. 2009-316087. If Respondent provides the Registrar with written proof that Respondent has fully complied with the Registrar’s Corrective Work Order on or before the effective date of the Order entered in Case No. 2009-316087, and the Registrar approves proof of such compliance, then the above- provided license suspension shall not take place, but instead Respondent’s contracting license shall be placed on suspension for five days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2009-316087. In addition to the above-provided disciplinary penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure of 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 Case No. 2009-316087 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided disciplinary penalties and civil penalty, Respondent shall pay the sum of $1,000.00 to the Registrar by way of a separate civil penalty pursuant to A.R.S. § 32-1154(E). The failure of 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 Case No. 2009-316087 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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 40days from the date of that certification. Done this day, June 8, 2010.

/s/ Brian Brendan Tully 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