ALJDEC decisions subject to certification as final

2016A-572-ROC · Registrar of Contractors · 2016-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marvin Fox,

COMPLAINANT,

v.

Timothy Allen Fiske

DBA: North Mountain Builders,

License No: 098816

RESPONDENT.

No. 2016A-572-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2016

APPEARANCES: Marvin Fox, Complainant; Timothy Pennington, Registrar of Contractors Investigator; Elizabeth Fox, Complainant’s wife

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

Complainant contracted with Respondent to build Complainant’s home. Complainant filed a complaint with the Registrar of Contractors on February 18, 2016 concerning various workmanship and completion items.

On April 19, 2016, a Registrar of Contractors Investigator, Timothy Pennington, issued a Directive from the Registrar instructing Respondent to correct the stucco, which was cracking excessively and to correct the heating and cooling in Complainant’s casita.

At a compliance inspection on May 12, 2016, Investigator Pennington found that the stucco had worsened but the hearing and cooling in the casita had been corrected.

At the time of the hearing, Investigator Pennington testified regarding the above facts and Complainant agreed with his testimony, but Respondent did not appear for the hearing.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108) and (22).

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. By failing to install the heating and cooling in Complainant’s casita and by improperly applying Complainant’s stucco, Respondent violated this provision of the statutes.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. By failing to correct Complainant’s stucco, Respondent violated this provision of the statutes.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. At the time of this recommendation, Respondent’s license is current with only one open complaint and one complaint that was resolved settled or withdrawn.

In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3) and (22). In consideration of Respondent’s relatively good license record, it is recommended that its license be suspended for one day.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license (License No: 098816) be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, October 31, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors