ALJDEC decisions subject to certification as final

2010A-3171957-ROC · Registrar of Contractors · 2010-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Paul Redman. 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-61 (No. 214533) License issued by the Registrar of Contractors. 2. This is a residential matter wherein the Respondent entered into a construction agreement with the Complainant to strip and refinish approximately 720 square feet of existing Saltillo tile in the Complainant’s residence for the total sum of $2,770.00. 3. There was no dispute that the Complainant paid the Respondent one half of the amount of the contract as a down payment. 4. Credible testimony and evidence established that the Respondent knew that time was of the essence in that the stripping and refinishing of the tile floor had to be finished before the Complainant’s furniture arrived and that the Complainant was anxious to have the construction project completed in a timely manner. 5. During the course of construction the Complainant became increasingly concerned over the damage that was being done to the floor tile and the rest of his residence during the stripping process. 6. Credible testimony and evidence established that the stripping process utilized by the Respondent damaged numerous floor tiles and surrounding baseboards in the Complainant’s residence. 7. The parties’ personal relationship deteriorated rapidly and following repeated disagreements at the jobsite on July 8, 2009 the Respondent issued a letter to the Complainant stating that there were numerous problems with the tile floor and recommending that the Complainant “contract another vendor to complete this project.” 8. The Complainant accepted the Respondent’s recommendation and retained an alternative contractor to correct and complete the construction project for the total sum of $4,675.00. 9. The Complainant then presented proof of his expenses to complete the flooring to the Respondent and requested reimbursement for his damages. 10. When the Respondent refused to reimburse the Complainant for his expenses the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 11. There was no onsite inspection because the Respondent’s work had already been corrected and completed by the alternative contractor. 12. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s tile floor was extremely poor and that it failed to comply with applicable workmanship and industry standards. 13. Credible testimony and evidence established that the stripping process utilized by the Respondent damaged the finish on many of the Complainant’s floor tiles and the surrounding baseboards and walls. 14. Credible testimony and evidence established that the Respondent abandoned the construction project leaving the Complainant with a partially stripped tile floor and his soon to be arriving furniture. 15. The Complainant’s actions in retaining an alternative contractor to correct the Respondent’s poor workmanship and properly complete the stripping and refinishing of the tile floor were shown to be reasonable and justified under the circumstances. 16. The alternative contractor charged the Complainant $150.00 as a consulting fee for traveling from the Phoenix area to the Complainant’s residence in Oro Valley and an additional sum of $3,445.00 to correct the Respondent’s workmanship and complete the stripping and refinishing of the Complainant’s tile floor and an additional $1,080.00 to correct the tile grout that had been damaged by the Respondent. 17. The Complainant’s expenses to correct the Respondent’s poor workmanship and properly complete the stripping and refinishing of his tile floor ($150.00 plus $3,445.00 plus $1080.00) totaled $4,675.00. 18. The sum of $4,675.00 less the sum of $1,385.00 that was not paid under the parties’ construction agreement leaves a total of $3,290.00 in actual damages. 19. The Respondent is found to be fully responsible for paying the sum of $3,290.00 to the Complainant as restitution for the Complainant’s actual damages in this matter. 20. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154A (1) (Abandonment) and A (3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 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-61 (No. 214533) License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $3,290.00 to the Complainant as restitution for the Complainant’s damages in this matter. It is further recommended that if the Respondent properly accomplishes the above described action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter shall be closed. 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, July 29, 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