ALJDEC decisions subject to certification as final

2010A-550952-ROC · Registrar of Contractors · 2010-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Kirk Kinney. 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 KB-01 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed an extensive remodeling of the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to complete and correct its construction work to her satisfaction despite her repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands the Complainant 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 lengthy written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Credible testimony and evidence, presented at hearing, established that the majority of the designated items set forth on the Corrective Work Order have not been corrected. 7. Credible testimony and evidence established that these are “punch list” items which would probably take approximately twenty man hours to correct. 8. Credible testimony and evidence established that the construction items set forth in the Corrective Work Order do not comply with applicable industry and workmanship standards and require proper correction by the Respondent. 9. Credible testimony and evidence established that the Respondent has had repeated opportunities to perform the directed corrective action and that the Respondent has failed to fully comply with the terms of the Corrective Work Order despite these repeated opportunities. 10. Credible testimony and evidence established that both parties have an apparent ongoing inability to effectively communicate or to schedule their onsite work and that both parties have repeatedly attempted to use Registrar of Contractors personnel to act as intermediaries. This is not an appropriate agency function. The parties in this matter are all adults and are fully capable of scheduling the corrective action required in the Corrective Work Order. 11. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems that she has experienced with the construction work on her residence 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 and workmanship standards. In this regard, the Respondent must be given a reasonable opportunity to complete the necessary remedial work set forth in the Corrective Work Order. 12. Notice is taken of the Respondent’s prior 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. § 32-1154: A(23) (Failure to take appropriate corrective action); 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 KB- License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms 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, 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, May 13, 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