ALJDEC

98F-T0241-ROC-COM · Registrar of Contractors · 1999-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|DOROTHY PLUNKETT, |(|Case No.: T98-0241 | | |(| | |Complainant, |(|Docket No.: 98F-T0241-ROC | | |(| | |vs. |(| | | |(|Recommended | |License No. 120904, Class C-48 of|(|Decision and Order | |Bryan Keith Stern, d.b.a. |(| | |THE TILE MAN OF GREEN VALLEY, |(| | | |(| | |Respondent. |(| | | |(| |

HEARING: June 3rd, 1999; 8:30 a.m. Appearances: The Complainant, Ms. Dorothy Plunkett, appeared in her own behalf. The Respondent appeared through Qualifying Party, Mr. Bryan Keith Stern. Administrative Law Judge: Grant Winston

This matter was called for administrative hearing on Thursday, June 3rd, 1999, at 8:30 a.m. Testimonies were taken and other evidence admitted, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein, Bryan Keith Stern, doing business as the Tile Man of Green Valley, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-48 License Number 120904.

2. The Complainant herein, Ms. Dorothy Plunkett, is a residential homeowner in Green Valley, Arizona. The Respondent had placed a Saltillo tile floor in her home in 1997. The total price Respondent charged the Complainant was $8,200.00. Complainant has paid that amount to Respondent.

3. Complainant was dissatisfied with the floor. She sought to have Respondent correct his work. She filed a Complaint against the Respondent with the Registrar of Contractors on October 6th, 1997. The case went to administrative hearing and the Administrative Law Judge issued a recommended Decision and Order on June 5th, 1998. The Registrar of Contractors adopted the recommended Decision and Order by his Order of June 15th, 1998. There is considerable difference of opinion between the parties as to how earnestly the Respondent has attempted to correct the floor’s defects. Obviously the Respondent has made some efforts, and obviously the Complainant is dissatisfied with those efforts. Bearing out the Complainant’s position that the repair efforts have been unsatisfactory is the testimony of the Registrar of Contractor’s Inspector who has been involved in this case from the beginning, Mr. James R. Morris. Mr. Morris testified that the corrections ordered by the Registrar have been only partially performed.

4. According the Registrar’s Order, the Respondent was to have corrected the tile job in Complainant’s home by performing particularly described corrections, noted in the Decision and Order of the Registrar. Evidence in the original hearing considered the feasibility of repairing the tile floor installed by Respondent, as well as evidence that the floor should be removed and replaced. The recommended Decision and Order, adopted by the Registrar, found that the floor could be, and should be, repaired.

5. During this, the compliance hearing, Complainant again contended that she should have a new tile floor installed throughout her 1,800 square foot home. She produced the testimony of a Mr. Pedro Leal, who testified that he has ten years’ experience in this sort of tile flooring, has seen Complainant’s existing floor, and is of the opinion that it cannot be repaired.

6. Opposed to this position of Complainant’s is the weight of evidence at the first hearing and the resultant Decision and Order of the Registrar, the continued position of the Respondent that the floor can be repaired and does not need to be removed and replaced, and Registrar of Contractor’s Inspector Mr. Morris also testified that it is possible to repair the floor.

7. The weight of evidence supports the finding that the floor can be repaired.

8. Prior to this hearing, after the previous Decision and Order of the Registrar, directing the Respondent to affect repairs had been issued by the Registrar, the Respondent, in an attempt to finally resolve the outstanding differences between he and the Complainant, extended to Complainant his offer to refund the entire sum of money she had paid him in their contractual relationship for the installation of the tile floor, $8,200.00. Complainant and Respondent both acknowledged at the compliance hearing that Respondent had tendered that amount to Complainant, that that amount is the full amount Complainant has paid the Respondent, and that Complainant refused the offer, based on her maintenance of the position that the floor is beyond repair, and must be replaced.

9. The Registrar, in his Order to hold this compliance hearing, dated April 14th, 1999, took notice of the offer made by the Respondent to return the $8,200.00 to the Complainant, and her refusal of that offer. Based on his notice of that offer and refusal, the Registrar ordered the compliance hearing that was held, and that the compliance hearing “regard[ ] the issue of whether Respondent has complied by offering a full refund to Complainant.”

10. Having found that the floor can be repaired, and it being undisputed that Respondent has offered, and Complainant refused, the full refund, it is found that Respondent has taken action worthy of being deemed compliance with the Registrar’s Order. However, at the time the offer to refund was made and refused, the Registrar had not passed judgment on that action as a compliance method. Therefore, it is found, in order for the refund to be deemed Compliance by the Registrar, Respondent, in the event the Registrar adopts this recommended Decision and Order, ought to re-tender the refund, thereby giving the Complainant an opportunity to accept the full refund of $8,200.00, while knowing it to be compliance as recognized by the Registrar. Absent the requirement that the Respondent re-tender the refund offer, an order that he has complied by virtue of the previous offer made and refused while the issues were still unresolved, would leave the Respondent under no obligation to take any meaningful steps to comply, and leave the Complainant with a floor installed by the Respondent still in need of repair.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein was charged in the initial Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3., namely A.A.C. R4-9-108, and was deemed in violation.

3. Based on the facts found, tender of a full refund of the money paid to Respondent by the Complainant should be deemed compliance with the Registrar’s Decision and Order.

Recommended Order

Wherefore, it is hereby ordered that Respondent’s Class C-48 License Number 120904 shall be suspended until such time as he re- tenders to the Complainant a check made payable to her in the amount of $8,200.00, constituting a full refund, and provides the agency with satisfactory proof of that action having been taken.

It is further ordered that if, on or before the effective date of this order, the agency has received satisfactory proof that the Respondent has re-tendered the full refund as set forth above, then the Respondent will be deemed in compliance with the Decision and Order of the Registrar issued June 15th, 1998, and this Citation and Complaint shall be closed.

Dated this 10th day of June, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of June, 1999, to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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