ALJDEC

97F-2534-ROC · Registrar of Contractors · 1997-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 1997 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president, Michael Twarog. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. At the outset of the scheduled hearing, the caption in this matter was amended to add Greg Campbell (Melissa Campbell’s husband) as Co- Complainant. 2. As part of a home remodel project, Respondent was retained for the purpose of installing new plaster texture on the walls of the interior of the home. Although Complainants had assistance from a friend who was a general contractor, the record presented at the hearing supports a finding that Complainants were acting as owner/builders on the project. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 3. The weight of the evidence of record was sufficient to support a finding that the following constitute construction deficiencies in the work performed by Respondent: a. Although the applicable verbal specifications called for an 80/20 (smooth/rough) finish on the walls, it was shown that the master bathroom, master bedroom closet and certain areas of walls in other areas of the home did not achieve the 80/20 variation between smooth and rough finish. It was shown that approximately 20% of the walls in the home needed correction to be relatively uniform in conformance with the texture applied throughout the majority of the home and with the verbal specification. b. Specified small areas of the walls have no texture at all. c. Trowel marks and “chatter” marks are visible in specified walls. d. Voids in the wall texture application are present on the wall surfaces adjacent to numerous receptacles, light switches, recessed lights and heating/cooling vents. e. Excessive build-up of texture material is present in certain wall corners of the home. 4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. 5. Notwithstanding the fact that the walls in the home were shown to contain certain deficiencies in the texture application work performed by Respondent, Complainants elected to have the walls painted. As their own general contractor, they are responsible for their action in applying paint to areas of the texture that had not previously been repaired. Thus, any repairs performed by Respondent as a direct result of the Order entered in this matter will not require Respondent to apply touch-up paint over said repaired areas. 6. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s Class B contracting license has been suspended by operation of law for failure to renew since July 1, 1997. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license. 7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. 8. All other items of the complaint, presented at the instant hearing, were either corrected, not adequately shown to be workmanship deficiencies, or matters upon which Complainants failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Class B license of Respondent shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on the items set forth in Findings of Fact 3 (a) through 3 (e), above, on or before the effective date of this Order, then the above-provided license revocation shall not take place but instead Respondent’s Class B license shall be placed on a period of disciplinary probation for 60 days. This alternative penalty shall commence, if at all, on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $175.00 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 this Order’s effective date 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. § 32-1101(A) (3), unless payment of any outstanding civil penalty is tendered.

Done this day, November 7, 1997.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of November, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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