ALJDEC

98F-0725-ROC · Registrar of Contractors · 1998-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 16, 1998

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, Jim Humphrey

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

Complainant purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent. Although numerous items of alleged workmanship and/or material deficiencies are set forth in the filed complaint, Complainant indicated at the outset of the scheduled hearing that the majority of items had either been corrected or were items that he agreed to accept. Thus, Complainant averred that the instant hearing would be limited to only the issues of the paint remedial work performed on the block fence, an alleged out of plumb wall in the kitchen, and a specified nail pop visible in the family room. Evidence of record established that the following constitute substandard and unacceptable workmanship attributable to Respondent: Respondent had previously performed specified remedial work on the block wall perimeter fence. The repair work required Respondent to re-paint two panels of said fence. The re-painted areas of the fence fail to provide an adequate and acceptable match with the existing areas of the fence. The north wall in the kitchen is out of plumb to an excessive degree. There is a nail pop in the ceiling of the family room. 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 and Respondent’s efforts to comply with same, total compliance was not accomplished. The instant record demonstrated that Complainant failed to notify Respondent of the fact that the paint remedial work on the fence failed to achieve a proper match with the existing areas of the fence, failed to notify Respondent of the reoccurrence of the nail pop in the family room, and failed to notify Respondent regarding its failure to correct the out of plumb wall in the kitchen. Evidence of record demonstrated that Respondent was confused regarding which wall in the kitchen required appropriate corrective work. The first time Respondent is apprised of these continuing deficiencies was at the pre-hearing jobsite inspection conducted by the assigned inspector for the Registrar of Contractors. Although Respondent has a duty to insure that its corrective work is appropriate and effective, this Tribunal can find no valid justification for Complainant’s failure to notify Respondent of the remaining or continuing deficiencies in Respondent’s workmanship. 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 numerous prior complaints that had gone into the hearing process, including several that contained disciplinary action against Respondent . Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

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, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 3(a) through 3(c). 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 license suspension, if any, that Respondent’s Class B license be placed on a period of 180 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 Respondent pay the sum of $175.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. 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.

Done this day, July 20., 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 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