ALJDEC

98F-M0237-ROC · Registrar of Contractors · 1998-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 1998 APPEARANCES: Complainants appeared through Co-Complainant Diane Miller 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, Respondent was retained by Complainants for the purpose of re-surfacing their existing patio with a specified coating material. The end result was to provide a flagstone appearing surface. Complainants allege a certain deficiency in the work performed and/or materials provided by Respondent and same is discussed in the findings below.

2. Uncontoverted evidence of record established that there is an unacceptable degree of chipping of Respondent's re-surfacing material in the area along an existing control joint of the patio.

3. 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, Respondent failed to comply with same.

4. Although Complainants have recently discovered a hairline crack in a specified area of the new patio surface, evidence of record supports a finding that, at the present time, said crack is minor in nature and still falls within minimum industry standards for acceptable workmanship. In the event said crack should expand beyond acceptable tolerances in the near future then Respondent would be responsible to repair said area.

5. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation. Moreover, in terms of aggravation, it is important to note that not only did Respondent fail to appear for the instant hearing but also failed to appear for the aforementioned jobsite inspection.

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 and said notice revealed other complaints against Respondent which have been forwarded to the hearing process. Therefore, Respondent's prior record is properly deemed to be poor and thus, is viewed as a matter in further aggravation for any disciplinary penalties to be imposed as a direct result of this case.

7. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent's contracting license has been canceled since August 1, 1997. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent's existing canceled 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 canceled license.

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 R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Class C-05 license of Respondent shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes a properly licensed contractor to accomplish appropriate and effective remedial work on the chipping of the coating material in the control joint, as described in the above Findings of Fact, 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-05 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 this Order. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $325.00 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, March 6, 1998

______________________________________ Mark A. Silver Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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