ALJDEC

97F-2000-ROC · Registrar of Contractors · 1998-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on September 3, 1998 pursuant to advance notice duly sent to both parties. The Complainant appeared through its Vice-President, Toby White. Although the start of the scheduled hearing was delayed for approximately 30 minutes to afford added time in which to make an appearance, the Respondent failed to appear through any employee or any proper legal representative. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Complainant’s uncontroverted evidence revealed that the following deficiencies existed and continue to exist in and around the swimming pool constructed by Respondent, all of such deficiencies separately and together reflecting adversely upon Respondent’s workmanship and necessitating appropriate corrective action.

(a) The bottom of the plaster surface in the pool was shown to be excessively wavy and rough, and an overall discoloration or mottling condition is visible, resulting in an aesthetically unacceptable appearance.

(b) Marker tile pieces on the steps were belatedly installed after the surrounding concrete had started to set up, and subsequent patching around such tile has produced rough, discolored and chipped areas.

(d) The outlet for the vacuum hose was improperly covered over by cementitious materials during a prior repair attempt by or on behalf of Respondent, rendering Complainant’s use of the vacuum system inoperable and forcing Complainant to resort to less efficient and more costly cleaning methods involving the use of portable vacuum equipment. The prior outlet must be located and made useable or other vacuum line access must be provided.

(e) Holes in the Kooldeck surface were never re-filled and re- finished after the attached stair or ladder grab railings were repositioned after an initial placement that yielded insufficient width. Additionally, the railing in its present location is loose as a result of inappropriately securing to the deck.

2. The credible testimony at the hearing tended to establish that proper remedial work at this time would consist of the complete replastering of the pool, during which work the tile and the vacuum hose outlet problems could and should also be addressed and rectified.

3. A written directive from Registrar’s assigned Inspector was sent to Respondent following a jobsite visit. Most all of the above-enumerated deficiencies were expressly specified in the directive as items in need of appropriate corrective action by Respondent within a fixed time period. However, Respondent did not complete or even commence any remedial measures, thereby not complying with the terms of the directive.

4. The ineffective or generally unresponsive course of conduct on the part of Respondent reflects a disregard of its duties as a licensed contractor in this State as well as of the comforts and entitlements of the Association and the individual unit owners and occupants. Such prolonged and unwarranted period of inaction on the part of Respondent is further found to constitute a wrongful act to the detriment of

Complainant within the meaning of one of the code sections charged hereunder as being violated by Respondent.

5. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

6. Administrative notice is taken of the Registrar’s license files which reveal that Respondent’s Class B-06 License Number 105616, cited in this administrative disciplinary action, was allowed to be canceled by Respondent effective as of February 17, 1998, despite the pendency of the instant complaint. On the same date, another Class B-06 license was issued to the same corporate entity listing the same qualifying party. This circumstance must be considered by the Registrar of Contractors when formulating a proper Order in this administrative disciplinary action. Little or no motivation would exist for any holder of a license or of a former license to accomplish necessary remedial measures in order to avoid the imposition of a suspension against an already-canceled license. Instead the imposition of a provisional license revocation, conditioned upon Respondent’s appropriate accomplishment of required corrective work would appear to be fully warranted. If the cited license is revoked due to the non-performance of such corrective action, any other license on which the same individuals are listed would remain vulnerable to future disciplinary action by the Registrar on his own motion.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S.§ 32-1154A (7), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B- license be revoked on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar).

It is further recommended that if Respondent properly accomplishes or causes the accomplishment of all necessary corrective work on the items set forth in Finding of Fact 1 (a) through 1 (e), inclusive, on or before this Order’s effective date, then the above-provided license revocation shall not be imposed, but instead, with respect to the instant case, the Class B- license of Respondent shall be deemed to have terminated in good standing.

It is further recommended, in addition to the above-provided provisional disciplinary penalty, if any, that Respondent pay the sum of $300.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32- 1101A(5), unless payment of any outstanding prior civil penalty is tendered.

It is further recommended that a copy of the Order entered by the Registrar of Contractors in this case be served upon the holder of Class B- License Number 132033 at an address of record different from that of Respondent for the information of that license holder, and additionally that if the above-provided revocation penalty is imposed against Respondent’s license, as cited in this action, either by reason of not timely accomplishing the required corrective work or not timely paying the civil penalty, the Registrar should evaluate the propriety of initiating an administrative disciplinary action against the current license held by the same individuals and the same corporate entity, as authorized pursuant to A.R.S. §32-1154A (21).

Dated: September 18, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826