ALJDEC

99F-0213-ROC · Registrar of Contractors · 1999-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 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 in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. This matter involves a new complaint filed by Complainant, involving the same issues that were the subject matter of a prior Order of the Registrar in Registrar of Contractors’ case no 97-1791. Both cases involve issues surrounding Respondent’s installation of wood plank flooring in Complainant’s home. Complainant alleged specified deficiencies in Respondent’s workmanship and/or materials in both cases and same are discussed in the findings below.

2. In the aforementioned Order issued in case no. 97-1791, the Registrar determined that Respondent was responsible for correcting any and all excessive gaps in the wood floor and insuring that all planks are properly glued together. Although, Respondent accomplished remedial work pursuant to said Order, uncontroverted evidence presented at the instant hearing demonstrated that said corrective work failed, as manifested by areas of the wood flooring where there is again excessive separation between specified planks of the wood floor.

3. Paragraph no. 7 of the Findings of Fact contained in the Registrar’s Order in case no. 97-1791 states:

“Evidence of record demonstrated that subsequent to the above- described summer of 1997 floor buckling occurrence, Respondent performed further remedial work in November 1997 with the intent of preventing any further floor buckling. There has been no evidence of floor buckling since the November 1997 repairs. Thus, as of the time of the instant hearing, this Tribunal can find no basis to hold that the buckling problem has not been corrected. Accordingly, the instant decision and order shall not make any provision that Respondent must make any further repairs referable to the buckling problem. However, Respondent is on notice that the November repairs, which were intended to stop the floor from buckling, must be capable of providing an effective and lasting repair of said construction deficiency. Any reoccurrence of the buckling problem within the two year period of time subsequent to the date of the November 1997 repairs would properly allow Complainant to file a new complaint with the Registrar of Contractors regarding this issue” (emphasis added).

4. Further uncontroverted evidence of record established that on or about the summer of 1998 Complainant again experienced buckling of the wood floor in specified areas. Although Complainant contacted Respondent referable to the reoccurrence of the buckling problem and Respondent returned to the home to observe same, Respondent failed to make any further repairs in this regard. Based on Respondent’s failure to repair or replace the floor after examining the reoccurrence of the buckling problem, Complainant ultimately filed the instant complaint with the Registrar of Contractors.

5. 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.

6. It is important to note that the floor at issue herein was installed by Respondent in 1995. Complainant has been experiencing problems with this floor for a period of over four (4) years. Although the Registrar normally allows a contractor a reasonable opportunity to correct its own workmanship deficiencies following the issuance of an Order finding violations of the State’s Contracting laws, a homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work, as a means to reduce or eliminate otherwise appropriate disciplinary penalties, should include the requirement that Respondent cause another properly licensed contractor to perform the required work.

7. Although the buckling of the floor was shown to be an intermittent problem, which had subsided at the time of the instant hearing, appropriate and effective remedial work must be accomplished to finally terminate the on-going buckling problem.

8. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

9. 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 regarding any prior final disciplinary orders against Respondent and said notice revealed that the two complaints filed by Complainant were the only complaints on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s over-all prior record is still 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 case.

CONCLUSIONS OF LAW

1. 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, commencing on the effective date of the Order entered in this matter, that the Class C-08 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has caused another properly licensed contractor to accomplish appropriate and effective remedial work to terminate the buckling problem in the wood floor, correct the excessive gaps in the floor, and insure that all planks are properly glued together.

It is further recommended that if Respondent causes another properly licensed contractor to accomplish the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-08 license be placed on a period of 120 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $300.00 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, October 14, 1999

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Mr. 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