ALJDEC decisions subject to certification as final

2009A-4216000-ROC-com · Registrar of Contractors · 2011-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through her attorney, Robert St. Clair. The Respondent appeared through its authorized representative, Scott Parker. 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 Order of the Registrar. 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 Registrar of Contractor’s Order Setting Compliance Hearing provides, in pertinent 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 set forth in the Registrar’s December 3, 2009 Order, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent failed to fully comply with the terms of the December 3rd Order, absent unreasonable interference or denial of access by Complainant, then its KB-2.154696-D License shall be subject to the immediate imposition of discipline. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives, then no suspension shall be imposed, and Respondent’s KB-2.154696-D License shall be placed on disciplinary probation for a period of 60 days. 2. The Registrar’s December 3, 2009 Order provides, in pertinent part, as follows: 15, Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, particularly in view of the extreme personal antipathy between these parties, the Respondent should not be allowed to wreak any further havoc on the life of this homeowner. 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 the Respondent cause another properly licensed contractor to replace the damaged portion of the Complainant’s masonry wall. …. …the Respondent’s Class KB-02 License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has, utilizing a properly licensed contractor, caused the Complainant’s masonry wall to be properly corrected. 3. Credible testimony and evidence established that the Complainant attempted to enter into negotiations with the Respondent to have the replacement wall constructed in a new location on the Complainant’s property and to have a privacy screen erected. 4. Credible testimony and evidence established that the Respondent treated the Complainant’s negotiation attempt as a denial of access. 5. Credible testimony and evidence established that the Respondent failed to cause the Complainant’s masonry wall to be corrected by an alternative licensed contractor. 6. Credible testimony and evidence established that the Respondent failed to cause a properly licensed contractor to even tender the directed corrective work on the Complainant’s masonry wall. 7. The credible testimony and evidence of record is insufficient and fails to support a finding that there was an unreasonable denial of access in this matter. 8. 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 and conditions of the prior Order of the Registrar. On the contrary, credible evidence of record established that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve compliance with the December 3, 2009 Order of the Registrar. 9. 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. 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 and conditions of the December 3, 2009, Order of the Registrar. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked pursuant to the terms of the Registrar’s December 3, 2009, Order. 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, June 23, 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