ALJDEC decisions subject to certification as final

2010A-1225719-ROC · Registrar of Contractors · 2010-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Matt Greenlee. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of a Class K-48 License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to install a new tile shower in the Complainant’s residence. 3. During the course of construction the parties’ personal relationship deteriorated rapidly as the Complainant became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work to the Complainant’s satisfaction despite his repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s demands the Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Credible testimony and evidence established that the Corrective Work Order has not been fully complied with. 7. Credible testimony and evidence established that the parties have a great deal of difficulty in communicating with each other. The parties are adults and are fully capable of scheduling required jobsite dates to complete the corrective action set forth in the Corrective Work Order. 8. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of his new tile shower are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to complete necessary remedial work. 9. The Respondent shall give the Complainant written notice of a date and time that it requires access to the Complainant’s residence to comply with the terms of the Corrective Work Order. Such notice shall be given to the Complainant at least seventy two (72) hours before the selected date and time. Any unreasonable denial of access may be treated as the substantial equivalence of compliance with the terms of the Corrective Work Order issued in this matter. 10. The Registrar of Contractors does not apply perfection standards when judging workmanship. The standard, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 11. Undisputed credible testimony and evidence established that the Respondent failed to properly display his license number and that the written construction agreement provided by the Respondent failed to comply with the minimum elements of a contract required by applicable statute. 12. The credible evidence of record in insufficient and fails to support a finding that the Respondent abandoned the construction project or refused to perform for the price stated in the parties’ written agreement. 13. Notice is taken of the Respondent’s excellent prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154A (2) (Departure or disregard of plans and specifications), A (23) (Failure to take appropriate corrective action), A (13) NAMELY A.R.S. § 32-1124(B) and A.R.S. § 32-1158 and A (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class K-48 License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, or if there is an unreasonable denial of access then the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by 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 this matter, shall result in the automatic revocation of Respondent’s contractor’s 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. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. 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 28, 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