ALJDEC

98F-2355-ROC · Registrar of Contractors · 1999-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 17, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent for the purpose of installing carpet and tile in the remodel of his residential structure. The residence in question is being utilized by Complainant as a small adult assisted living facility wherein a specified number of adults currently reside. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. Undisputed evidence of record established that the following constitute substandard and unacceptable work attributable to Respondent:

a. In the area wherein the front porch tile abuts the concrete walkway there is an excessively wide grout joint. In addition, there is a ¾ inch vertical displacement in the same area wherein the tile abuts the concrete and said condition constitutes a trip hazard. b. There is one cracked floor tile in a specified area between the kitchen and the living room. c. Specified areas of the floor tile installation in the hallway, kitchen, and the area between the kitchen and laundry room reveal an excessive number of hollow sounding tiles. d. Although rubber reducer strips were utilized in all areas wherein the carpet installation abuts the tile, there is no rubber reducer strip in the area where a specified hall bedroom carpet meets the hall tile. e. Bi-pass door guides were not reinstalled in the above described hall bedroom, subsequent to Respondent’s installation of the carpet in said area. 3. Two jobsite inspections by the appointed inspector for the Registrar of Contractors were held, pursuant to which that Agency sent Respondent letters directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directives, Respondent failed to comply with same. 4. It is interesting to note that Respondent filed a lawsuit against Complainant for non-payment on the contract. Although Respondent received a judgment in its favor in justice court, evidence of record at the instant hearing showed that the judge in the justice court case included in his order the requirement that Respondent must complete the work set forth in the above-described Registrar of Contractor’s Corrective Work Orders. Notwithstanding the judge’s comments in his Order, Respondent continued to fail to comply with the requirements set forth in these Agency directives. 5. By its failure to appear for the instant hearing, Respondent failed to present any matters in defense or mitigation. 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 Contractor’s 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 that prior disciplinary sanctions had been imposed against Respondent’s license by the Registrar. 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. 7. Notice is hereby taken of official Registrar of Contractor’s public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a qualifying party since August 8, 1998. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license. 8. Complainant expressed concern regarding whether or not necessary remedial work could be performed by Respondent with the residents of the home remaining in said home and, in the event that they would have to be re- located during the performance of the remedial work, who would sustain the expense involved in such a relocation. In light of the fact that Respondent is responsible to make the required repairs, it would also be responsible to pay for all costs directly attributable to performance of the corrective work. 9. It is important to note, by way of further aggravation, that the work in question was initially performed by Respondent in 1997 and that Complainant has attempted over a very prolonged period of time to get Respondent to repair the construction deficiencies. . . . . . . . . . CONCLUSIONS OF LAW

1. Uncontroverted evidence of record established that 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 that the Class C-08 license of Respondent shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent accomplishes appropriate and effective remedial work on the items set forth in Findings of Fact 2 (a) through 2 (e), above, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-08 license shall be placed on active suspension for a period of 7 days followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above provided alternative penalties, that Respondent pay the sum of $350.00 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 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) (3), unless payment of any outstanding civil penalty is tendered. Done this day, February 22, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of February, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826