ALJDEC

97F-3121-ROC-COM · Registrar of Contractors · 1998-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 19, 1998. APPEARANCES: Complainant appeared personally. Respondent appeared through its senior vice-president, James Dawson

ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The scope of this hearing is to determine whether or not Respondent has complied with the prior Order of the Registrar of Contractors in this disciplinary action. 2. The Complainant filed a complaint against Respondent in this matter alleging that Respondent violated provisions of the state’s contracting laws while performing contracting work for her. 3. In response to the complaint, the Registrar’s assigned agency inspector performed a jobsite inspection. That inspection resulted in the issuance of a Corrective Work Order directing Respondent to correct some, but not all, of the alleged items of deficient workmanship detailed in the filed complaint. 4. The Registrar issued a Citation and Complaint against Respondent. Respondent failed to timely file an Answer. 5. Due to Respondent’s failure to timely file an Answer in this matter, the Registrar issued a default Decision and Order finding that Respondent’s failure to timely file an Answer was deemed an admission to the allegations contained in the complaint. The Registrar concluded that Respondent had violated the provisions of the state’s contracting laws as cited in the Citation. The Registrar ordered that Respondent’ s Class B license be suspended until Respondent appropriately rectified the items set forth in the complaint and the written directive. 6. Respondent subsequently filed a Petition for Rehearing in this matter. That petition was denied by the Registrar. 7. Respondent did not timely appeal the final decision of the Registrar to the Superior Court. Therefore, the Registrar’s Order is final. 8. Respondent can not collaterally attack the findings of the Registrar’ prior Order in this compliance hearing. 9. The Registrar’s Order requiring Respondent to undertake appropriate action to rectify the items contained in the complaint and written directive did not absolve Respondent from correcting items which the Registrar’s inspector had determined were not defective as outlined in the corrective work order. Complainant was entitled to present evidence at a hearing to refute such determinations made by the inspector. As a result of Respondent’s default in answering the Citation and Complaint, Respondent is deemed to have admitted all allegations contained in Complainant’s complaint. Complainant was denied the opportunity to present evidence to support her position that those items were defective due to Respondent’s default and the subsequent default Order issued by the Registrar of Contractors. Respondent cannot be afforded a defense to allegations which were not permitted to be addressed in an administrative hearing due to its default in answering. 10. It is undisputed that Respondent has not properly repaired or replaced Complainant’s cracked granite countertop. The countertop should be repaired so that the existing crack is not visible. If the crack in the granite countertop cannot be repaired so that the crack is not visible, then the countertop should be replaced with a similar product. 11. It is also undisputed that Respondent has not properly repaired the access panel to Complainant’s whirlpool tub as set forth in her complaint. 12. Respondent is found to have cause proper repairs to Complainant’s cracking concrete balcony. Although there are presently some hairline cracks present in the concrete balcony that are objectionable to Complainant, those hairline cracks are found to be within allowable tolerance permitted by minimum workmanship standards. 13. All other allegations contained in Complainant’s complaint and the Registrar’s written directive are found to have been appropriately rectified by Respondent to minimum workmanship standards. 14. Respondent is found not to have fully complied with the prior Order of the Registrar. However, it is determined that Respondent should have one final opportunity to comply with the Registrar’s prior Order before imposing suspension of Respondent’s Class B license until compliance is achieved.

CONCLUSIONS OF LAW

1. Respondent’s failure to timely answer the citation and complaint is deemed an admission by it of its commission of the acts charged in the complaint. A.R.S. § 32-1155 (B). 2. After Respondent failed to timely answer the citation and complaint and deemed to have admitted the allegations contained in the complaint, the Registrar had the authority to discipline Respondent’s Class B license. Id. 3. Since the Respondent did not fully comply with the Registrar’s final Order to rectify all items contained in the complaint which by operation of law it admitted were true, the Registrar of Contractors has the authority to suspend Respondent’s Class B license until it has fully complied with the final Order.

RECOMMENDED ORDER ON COMPLIANCE

In view of the foregoing, it is recommended that Respondent be given an additional 30 days from the date of the Registrar’s written determination on Respondent’s compliance with the final Order to complete the remedial repairs as set forth in Findings No. 10 and 11 above.

Done this day, May 29, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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