ALJDEC

97F-T0127-ROC-COM · Registrar of Contractors · 1997-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |§| | |RICHARD V. DARDANO |§|DOCKET NO.: 97F-T0127-ROC | | |§| | |Complainant, |§| | | |§| | |-v- |§|RECOMMENDED | | |§|DECISION AND ORDER on compliance| |License No.090489, Class B- of |§|hearing | |MICHAEL S. BARR CORPORATION, |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: October 28, 1997, at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Richard Block. ADMINISTRATIVE LAW JUDGE: M. Douglas

On October 28, 1997, this matter came on for hearing to determine whether the Respondent has substantially complied with the terms and conditions of the previously entered Decision and Order of the Registrar of Contractors in this matter. The Complainant appeared on his own behalf and the Respondent appeared through its attorney, Richard Block. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made:

FINDINGS OF FACT

1. There are two prior Orders in this matter, the first Order followed a settlement agreement concluded by the parties during their December 10, 1996 hearing, and the second prior Order followed a settlement agreement reached by the parties during a limited rehearing of this matter held on April 4, 1997.

2. Both prior Orders, which have become final in the absence of any timely appeal provided for the closure of the matter at issue based upon the parties’ settlement agreements.

3. The parties have experienced numerous, sharp, personal, confrontations at the job-site. Following the latest confrontation, the Complainant requested a compliance hearing.

4. During the hearing, the Respondent stipulated to perform the following corrective actions: e) The Respondent shall request Pima County Development Services to perform an on-site inspection and issue an approval of the Respondent’s work on the rear porch area. f) The Respondent shall properly correct the rear porch concrete slab edge. g) The Respondent shall properly correct, and cover all exposed wood, lathe and foam on the front porch column and on an exposed area under the bay window. h) The Respondent shall properly correct the cracks in the rear porch beam. i) The Respondent shall properly remove the block debris from the alley behind the Complainant’s residence. j) The Respondent shall properly touch-up the previous stucco repair by the rear porch area. k) The Respondent shall properly correct the paint over-spray on the front porch and around the exterior windows.

12. The only item remaining at issue between the parties was the issue, set forth in the parties’ written settlement agreement, requiring the re- grading of the front of the residence to conform to its original drainage plan and the placement of rocks at appropriate drainage areas to eliminate erosion.

13. Credible evidence, presented at the Compliance Hearing, established that the front of the residence had been properly re-graded. However, the Respondent failed to install the rocks at appropriate drainage areas as set forth in the parties’ written settlement agreement. The Respondent shall place rocks at appropriate drainage areas as set forth in the parties’ written settlement agreement.

14. All other enumerated items of the written agreement were shown to have been properly corrected and consequently in compliance with the prior agency Order.

15. Despite repeated good faith efforts, on both sides, the parties continue to display a near inability to effectively communicate or to schedule their job-site work. The parties are currently under a mutual restraining Order which severely limits their ability to be around each other and the Complainant is currently on probation from a misdemeanor assault case involving one of the Respondent’s employees. Despite these very obvious difficulties, both parties still wish to have the designated corrective action to be performed.

16. In view of the totality of the foregoing, the parties stipulated that the Complainant shall physically remove himself from the residence while the Respondent is performing any corrective action or during any inspections involving the Respondent. The parties further stipulated that all of the above designated corrective action was to commence at 8:00 a.m. on November 10, 1997, and all work shall be completed no later than 5:00 p.m. on November 21, 1997.

CONCLUSIONS OF LAW

1. The credible evidence presented at the Compliance Hearing supported findings that the Respondent has not yet complied with the terms and conditions of the prior Order of the Registrar of Contractors.

2. The unique circumstances of this matter warrant the modification of the prior Order of the Registrar of Contractors so as to allow the Respondent an additional opportunity to perform necessary corrective action and the Complainant an additional opportunity to accept the performance of the properly tendered corrective action.

RECOMMENDED ORDER on compliance hearing

In view of the foregoing, it is recommended that the Respondent be given a final opportunity to properly tender and perform necessary corrective action, as set forth above in Finding of Facts Numbers 4(a) through 4(g), inclusive, and Number 5, and that the Complainant be given a final opportunity to accept the performance of the above designated corrective action.

It is further recommended, on the effective date of this Order, that Respondent’s Class B license shall be temporarily suspended until the Registrar of Contractors receives proof that the Respondent has properly accomplished the corrective action set forth above in Finding of Facts Numbers 4(a) through 4(g), inclusive, and Number 5.

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No. T97-0127 shall be closed.

Dated this 29th day of October, 1997.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of November, 1997 to:

Michael P. Goldwater, Director Attn: Jennifer Varela Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by: