ALJDEC decisions subject to certification as final

2010A-308476901-ROC · Registrar of Contractors · 2011-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2011 APPEARANCES: Rodney W. Fountain appeared personally and he was represented by his attorney, Gary Michael Smith, Esq. S and L Roofing, L.L.C. was represented by its attorney, Gregory D. Green, Esq. ADMINISTRATIVE LAW JUDGE: Brian B. Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. S and L Roofing, L.L.C. (“Respondent”) is the holder of License No. 249954, a Class K-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 2, 2010, Rodney W. Fountain (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on a remodeling job at Complainant’s residence located at 4485 South Neilson, Joseph City, Arizona. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 3. In response to the filed Complaint, the Registrar’s assigned inspector performed a jobsite inspection at Complainant’s residence. As a result of that jobsite inspection, the inspector issued a Corrective Work Order that required Respondent to timely remediate specified Complaint items. 4. On July 11, 2011, the Registrar issued a Citation and Complaint in Case No. 2010-[number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (2), (3), namely A.A.C. R4-9- 108, 13, namely A.R.S. § 32-1158, (17), and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On or about October 4, 2011, Complainant filed a Motion to Amend Citation and Complaint. 7. On October 19, 2011, the Registrar issued a Notice of Amendment that added the following charged violations to the Citation and Complaint: A.R.S. § 32-1154(A) (4), (5), (7), (9), (10), (12), (14), (16), (3), namely A.A.C. R4-9-108 and A.A.C. R4-9-112, and (13), namely A.R.S. § 32-1124. 8. At the hearing, the parties announced that they had reached a settlement agreement, the terms of which were read into the record. The essential terms of the settlement agreement are as follows: a) Respondent shall have 30 days from the date of the hearing to cause repairs to the items set forth in the Complaint and the Notice of Amendment Citation and Complaint. Work beyond the scope of Respondent’s Class K-42 contracting license shall be performed by an appropriately licensed contractor at Respondent’s sole cost and expense.[1] Respondent agrees to advise Complainant in advance of the identity of such contractors. Complainant agrees to provide reasonable access to Respondent and other contractors.

b) Respondent admits all violations set forth in the Citation and Complaint, and the Notice of Amendment.

c) The parties agree that Respondent’s deficient workmanship has damaged Complainant no less than $30,000.00.

d) The parties agree that the determination of any appropriate disciplinary action be left to the Registrar.

9. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 249954 is current. There is one open complaint and two resolved/settled/withdrawn complaints against the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (2), (3), namely A.A.C. R4-9-108 and A.A.C. R4-9-112, (4), (5), (7), (9), (10), (12), (13), specifically A.R.S. §§ 32-1158 and 32-1124, (14), (16), (17), and (23) as charged in the Citation and Complaint issued by the Registrar. Respondent admitted to those violations at the hearing as part of the parties’ settlement agreement. RECOMMENDED ORDER Respondent’s License No. 249954 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. If Respondent provides the Registrar with written proof that Respondent has fully complied with the terms of the parties’ settlement agreement and that Respondent has become fully compliant with the statutes and regulations set forth in Conclusion of Law No. 2 above on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves such proof of compliance, then the above-provided license revocation shall not take place, but instead that Respondent’s License No. 2010-[number redacted] shall be suspended for a period of 45 days followed immediately by a period of disciplinary probation for a period of two years. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2010-[number redacted]. 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 $10,000.00, such surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1152(C). 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, December 16, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Corrective Work Order required Respondent to hire appropriately licensed contractors to perform the remedial work beyond the scope of Respondent’s Class K-42 contracting license.

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