ALJDEC

98F-P0319-ROC-com · Registrar of Contractors · 2000-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2000 APPEARANCES: Complainant was represented by her attorney, Brad Carlyon and Respondent appeared through its owner, Carwin Slade. 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

1. This matter came on for hearing to determine whether or not Respondent substantially complied with the terms and conditions of the prior settlement agreement which the parties entered into on May 14, 1999, the date that the Citation and Complaint in this matter was originally set for hearing. The settlement agreement entered on May 14, 1999 had the effect of terminating the license disciplinary hearing that was scheduled on said date. The Registrar accepted the settlement agreement and closed the case at that time.

2. Subsequent to the time that the settlement agreement conditions should have been accomplished, the Registrar received information from Complainant that compliance had not been accomplished. The Registrar directed the assigned Agency inspector to conduct a compliance inspection and shortly thereafter issued the Notice of Compliance hearing. In the Notice of Compliance hearing, the Registrar indicated that said compliance hearing could result in the imposition of disciplinary sanctions against Respondent’s license (in the event that non-compliance was determined).

3. A review of the salient parts of the settlement agreement of May 14, 1999 reveals the following: a. Respondent agreed to construct specified shelving and install phone jacks in the home on or before August 15, 1999. b. Respondent agreed to construct an attached garage for the home on or before August 15, 1999.

4. Evidence of record established that Respondent failed to complete the above-described construction work by the deadline date of August 15, 1999. Respondent testified that he was hospitalized on two occasions in the summer of 1999 and that he was unable to work for about a six month period of time due to his illness.

5. Although Respondent’s medical problems explains why he failed to comply with the deadline date set forth in the settlement agreement, it does not excuse his failure to complete the project on time. Respondent could have hired others to complete the project and, in fact, ultimately he did hire others to complete the project.

6. Evidence of record demonstrated that the local building authority did not issue a final “c.o.” on the garage until August 14, 2000. Moreover, Respondent testified that this past weekend he still had a worker on site who was completing paint work on the garage door and sealing of the shelves. Respondent did not see the completed paint and sealing work but he testified that his workman advised him that all remaining work has been completed. Complainant has not been to the home recently and thus, she was unable to contradict Respondent’s testimony that all of the required work has been completed. Based on the record presented herein, it is determined that all of the required work is now, albeit belatedly, complete.

7. Based on the fact that it took Respondent almost one full year beyond the deadline date set forth in the settlement agreement, it is determined and held that Respondent failed, in a material respect, to comply with all of the terms and conditions of the settlement agreement. This significant delay in accomplishing the required construction work warrants the imposition of appropriate disciplinary sanctions against Respondent’s license.

8. 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 there were no prior disciplinary actions on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this compliance hearing.

CONCLUSIONS OF LAW

1. Respondent failed to achieve substantial compliance with the deadline date for completing the agreed upon construction work and said failure warrants imposition of a disciplinary sanction, at this time.

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 placed on a period of disciplinary probation for 120 days.

Done this day, August 29, 2000

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, 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