ALJDEC

97F-M1862-ROC · Registrar of Contractors · 1997-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 1997 APPEARANCES: Complainant appeared through its vice-president, Terry Griffith and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant acting as the general contractor on a public school renovation project, retained Respondent for the purpose of renovating the HVAC system. Complainant alleges a certain deficiency in the work performed by Respondent and same is discussed in the findings below. 2. Undisputed evidence of record demonstrated that the plans and specifications for the aforementioned HVAC renovation project were prepared by the local school district. The plans required that the system have a control to automatically cycle the blower fan on and off, while in the air- conditioning setting, as the appropriate cooling temperature was achieved or needed. 3. Notwithstanding the above-described project specification which required a control to automatically cycle the fan on and off when set for air-conditioning, the system installed by Respondent failed to include said specification. Thus, when the system is set to provide cooling, the blower fan continues to run constantly (even after the cooling cycle achieves the required temperature). 4. The failure to provide an automatic setting for the operation of the blower fan was included on a punch list provided by Complainant to Respondent. Notwithstanding efforts by Complainant over a prolonged period of time to cause Respondent to perform the required remedial work, Respondent has failed to perform any corrective work in this regard. The existence of this deficiency and Respondent’s failure to correct same constitutes substandard workmanship and a wrongful act within the meaning of the charged sections of the State’s Contracting laws. 5. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in mitigation or defense. 6. 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 the absence of any prior adverse disciplinary orders 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.

CONCLUSIONS OF LAW

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

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class L-39 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to provide a fan blower system that will automatically cycle on and off in conjunction with the air-conditioning system installed in the school in question. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing indefinite license suspension, if any, that Respondent’s Class L-39 license be placed on a period of 120 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending.

Done this day, December 22, 1997.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________ -----------------------

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