ALJDEC

98F-1253-ROC · Registrar of Contractors · 1998-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 1998. APPEARANCES: Complainant appeared personally and timely. No appearance was made on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The commencement of the instant hearing was delayed approximately fifteen minutes to allow for the appearance of Respondent’s partners or an attorney representing it. No such appearance was made. Evidence and testimony were presented at the hearing and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant is a senior citizen residing in Sun City, Arizona. Due to her feeble health condition, she walks with the assistance of a cane. 2. Complainant contracted with the Respondent for the construction of a room addition to her home. 3. The contract price for the room addition was the sum of $18,669.00. Complainant paid Respondent the full contract price. 4. Subsequent to the completion of work on the project by Respondent, Complainant filed a complaint against Respondent with the Registrar of Contractors alleging three areas of deficient workmanship. 5. As a result of Complainant’s filed complaint, the Registrar’s assigned inspector performed a jobsite inspection at Complainant’s home on January 15, 1998 to view the alleged areas of deficient workmanship. The Respondent did not attend the jobsite inspection, which was its prerogative. 6. The inspector viewed and took measurements of the concrete floor installed by Respondent in the room addition. The inspector opined that the floor was out of level beyond acceptable tolerances. The inspector found the floor to be uneven by ¾” in 4’. Standard tolerance for such a floor is a variance of ¼” in 10’. Respondent installed carpeting over the floor. There is an abrupt transition point from where the new floor meets the existing floor. The new floor then slopes sharply downward into the new addition. Not only does that transition from the existing floor into the new addition not meet minimum workmanship standards, it is determined that Respondent’s failure to install the new concrete floor to minimum workmanship standards poses a safety hazard to persons walking on it, especially Complainant who walks assisted by the use of a cane. 7. The parties contract specified that Respondent would install 1½” Styrofoam insulation in the room addition. Respondent deviated from those specifications and instead installed R 11 fiberglass batt insulation. 8. The inspector determined that a door installed by Respondent in the room addition did not meet minimum workmanship standards. The inspector observed daylight piercing through all sides of the closed door. 9. As a result of the inspector’s findings, the Registrar of Contractors issued a Corrective Work Order dated January 30, 1998, directing Respondent to perform the following remedial work: perform all necessary repairs to the new concrete floor to bring the unlevel floor within minimum workmanship standards; install installation as specified in the parties’ contract; and to adjust the door so that it seals properly. 10. Respondent has not complied with the Registrar’s written directive to correct its deficient workmanship. 11. By letter dated March 5, 1998, one of Respondent’s partners, John Ahrenberg, wrote to the Registrar’s assigned inspector. In that letter Ahrenberg advised the inspector that Respondent was going out of business and that Respondent was “..sick and tired of putting up with the lying good for nothing consumers we have had the displeasure in meeting…like this lying old women (sic) Linnie (sic) Baker who cant (sic) remember what was agreed upon.” (Emphasis added). It should be noted that Complainant is not required to remember what was agreed upon because the parties’ written agreement, unless amended, governed the contractual obligations of each party. It is evident from that letter that Respondent has a callous disregard for its responsibilities as a licensed contractor to its clients, especially this Complainant. There is an appropriate administrative appeal process available for the Respondent to contest the allegations raised in Complainant’s complaint and the Registrar’s written directive; however, Respondent chose not to participate in that administrative process. 12. The official records of the Registrar of Contractors indicate that Respondent’s license was cancelled on March 13, 1998. 13. Respondent’s proven areas of deficient workmanship and failure to comply with the Registrar’s written directive to perform remedial repairs to its deficient workmanship are deemed wrongful acts which have substantially injured Complainant. In addition, Respondent’s installation of the new concrete floor is a serious safety hazard. 14. The totality of the evidence of records supports a finding that no useful purpose would be served by requiring that the necessary remedial repairs to the above described areas of Respondent’s workmanship to be performed by the Respondent. Respondent has had ample opportunity to perform such repairs. Respondent has also expressed to the Registrar its contempt for clients who complain about its workmanship, especially and specifically this Complainant. However, it is determined that Respondent should be required, at its sole cost and expense, to cause a properly licensed contractor to perform the necessary repairs to its proven deficient workmanship so that those areas meet minimum workmanship standards.

CONCLUSIONS OF LAW

1. Respondent cannot escape disciplinary action by the Registrar of Contractors for work performed while licensed by canceling its contractor’s license. The voluntary surrender of a contractor’s license by a licensee does not deprive the Registrar of jurisdiction to proceed with any disciplinary proceeding against such licensee or to render a decision suspending or revoking such license. A.R.S. § 32-1154 (C). 2. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154 (A) (2), (7), (23) and (3); namely Rule R4-9-108. 3. The Registrar of Contractors may impose a civil penalty of not to exceed $500.00 on a contractor for each violation of A.R.S. § 32-1154 (A) (23) pursuant to A.R.S. § 32-1154 (D). The evidence of record supports the Registrar’s imposition of a significant civil penalty against Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B license be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent, at its sole cost and expense, causes a another properly licensed contractor to accomplish the items of corrective work set forth in the filed complaint and the Registrar’s written directive, the terms of which are incorporated herein by reference, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place and Respondent’s Class B license shall be deemed to have been canceled in good standing. It is further recommended, if Respondent timely causes the items of corrective work set forth in the complaint and written directive to be accomplished prior to the effective date of the Order entered in this matter and avoids the revocation of its license, then Respondent shall be required to pay the sum of $500.00 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 the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s Class B 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)(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, September 22, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

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

ATTN: Joyce Armijo

By _______________________________

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