ALJDEC decisions subject to certification as final

2010A-17919845-ROC · Registrar of Contractors · 2010-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 31, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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 License No. K-8.226835-D issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed new laminate flooring in the Complainant’s residence in November 2008. 3. The Complainant noticed that the new laminate flooring was bouncing and separating and that the new laminate flooring presented an extremely poor aesthetic appearance. 4. On December 8, 2008, the Complainant notified the Respondent of the problems with the new laminate flooring, and the Respondent referred the Complainant to the installer that actually installed the laminate flooring. 5. Credible testimony and evidence established that the Complainant attempted to contact the installer on repeated occasions and that the installer repeatedly failed to return the Complainant’s calls. 6. Credible testimony and evidence established that the Respondent is fully responsible for the errors or omissions of the Respondent’s employees and subcontractors. 7. Finally, in July 2008, the Complainant again contacted the Respondent and demanded that the Respondent properly correct the problems with the laminate flooring. 8. Credible testimony and evidence established that over the next several months the Complainant repeatedly contacted the Respondent and requested appropriate repairs to the new floor and that the Respondent failed to properly respond to the Complainant’s complaints. 9. When the Respondent stopped accepting the Complainant’s telephone calls, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on December 1, 2009, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s laminate flooring. 11. The December 1, 2009 Corrective Work Order provides, in relevant part, as follows: Contractor to correct by appropriate means the following: 1. The laminate wood flooring that is bouncing at hallway wall next to kitchen entrance. 2. The molding that is loose next to closet bypass door tracks. The molding is loose at all bedroom closets. 12. On January 28, 2010, the Agency Inspector issued an Addendum to the Corrective Work Order directing the Complainant to perform additional corrective work on the Complainant’s laminate flooring. 13. The January 28, 2010 Addendum to the Corrective Work Order provides, in relevant part, as follows: Contractor to correct by appropriate means the following: 1. The caulking is separating where the wood floor meets the lower portion of the baseboards. This is in the living room, across from the kitchen, the hallway, and in the son’s bedroom under his desk. 2. The contractor needs to check and correct all of the caulking that was installed at the floor to baseboards at Complainant’s home. 14. On March 9, 2010, the Agency Inspector issued a second Addendum to the Corrective Work Order. 15. The March 9, 2010 Addendum to the Corrective Work Order provides, in relevant part, as follows: Contractor to correct by appropriate means the following: 1. The laminate flooring in the living room is separating at the ends at two areas, this is near the kitchen. 2. In the Complainant’s office in front of his desk there are four ends in the laminate flooring that are separating. 16. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s laminate flooring fails to comply with applicable workmanship and industry standards. 17. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order and the two Addendums to the Corrective Work Order. 18. Credible testimony and 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 Corrective Work Order and the two Addendums to the Corrective Work Order issued in this matter. On the contrary, credible evidence of record established that the Respondent has repeatedly failed to properly correct the problems with the Complainant’s laminate flooring and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to properly correct the Complainant’s laminate flooring. 19. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to a hearing, under all of the salient facts and circumstances presented herein, this 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 of the Complainant’s choice to fully comply with the terms of the Corrective Work Order and the two Addendums to the Corrective Work Order issued in this matter. 20. Notice is taken of the Respondent’s prior good 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- 1154(A) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154(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 Respondent’s License No. K- 8.226835-D be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainant’s choice to fully comply with the terms of the written Corrective Work Order and the two Addendums to the Corrective Work Order issued in this matter. It is further recommended that if the Respondent, utilizing a properly licensed contractor of the Complainant’s choice, causes the accomplishment of the above described corrective action, on or before the effective date of this Order, 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 the 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 the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the 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, September 7, 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