ALJDEC decisions subject to certification as final

2010A-16162995-ROC · Registrar of Contractors · 2010-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2010 APPEARANCES: Elizabeth and Steven Weisman were represented by their attorney, E.J. Peskind, Esq. G S Tile, L.L.C. was represented by its authorized representative, Jason Flock. 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. G S Tile, L.L.C. (“Respondent”) is the holder of License No. 250129, a Class K-08 contracting license issued by the Registrar of Contractors (“Registrar”). Jason Flock is Respondent’s qualifying party and sole member. 2. On October 28, 2009, Elizabeth and Steven Weisman (“Complainants”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on a project at their residence located at 9754 N. 131st Street, Scottsdale, Arizona. The Registrar designated the Complaint as Case No. 10-1616. The Registrar re- designated the Complaint as Case No. 2010-16162995. 3. The Registrar issued a Citation and Complaint in Case No. 2010- 16162995 charging Respondent with violations of A.R.S. § 32-1154(A) (1), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. §§ 32-1124(B) and 32-1158. 4. The Registrar forwarded Case No. 2010-16162995 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The parties entered into a written agreement dated July 17, 2009 for a small remodeling project at Complainants’ residence. 6. The parties’ contract outlined the scope of work to be performed and the total contract price of $8,750.00. Complainants paid Respondent a down payment of $4,375.00. The contract is silent as to when the balance would be due. 7. The parties’ contract does not list Respondent’s contracting license number. 8. In response to the filed Complaint, the Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection at Complainants’ residence to view the Complaint items. That inspection resulted in Inspector Fleetham issuing a Corrective Work Order dated November 20, 2009, directing Respondent to timely perform remedial work to its specified deficient workmanship and to the damage caused by Respondent in the performance of its original scope of work. Inspector Fleetham also identified Complaint items that he determined were not Respondent’s responsibility. The Corrective Work Order dated November 20, 2009 is incorporated herein by reference. 9. On December 3, 2009, Inspector Fleetham conducted a second jobsite inspection. After that inspection, Inspector Fleetham issued an addendum Corrective Work Order as a result of the second inspection. [1] 10. Respondent failed to comply with the Registrar’s written directives. Respondent was given repeated opportunities by Complainants to perform the required remedial repairs, but it failed to do so. 11. Respondent was without legal justification for its refusal to comply with the Registrar’s written directives. Respondent contends that it is entitled to full payment of the contract price prior to Respondent complying with the Registrar’s written directives. Respondent’s contention is not persuasive or justified by the evidence. 12. Respondent’s failure to complete its original scope of work and its failure to comply with the Registrar’s written directives constitutes an unjustifiable refusal to perform its work to workmanship standards and to repair damage to Complainants’ residence caused by its workmanship. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. §§ 32- 1124(B) and 32-1158, as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 250129 shall be revoked on the effective date of the Order entered in Case No. 2010-16162995. If Respondent provides proof to the Registrar that it has fully complied with the Registrar’s two written directives and that it has become fully compliant with the provisions of A.R.S. §§ 32-1124(B) and 32-1158 on or before the effective date of the Order entered in Case No. 2010- 16162995, and the Registrar approves such proof of compliance, then the above license revocation shall not take place, but instead Respondent’s License No. 250129 shall be placed on suspension for a period of two 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. 2010-16162995. In addition to the above-provided alternative 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 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 Case No. 2010-16162995 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 penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above-provided 24-month period and only if no claims are then pending. 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 40 days from the date of that certification.

Done this day, June 7, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The addendum Corrective Work Order is erroneously dated November 20, 2009.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826