ALJDEC

99F-1900-ROC · Registrar of Contractors · 1999-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 1999 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its president, Jack Brock. 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 written contract, Complainant retained Respondent for the purpose of accomplishing specified remodel work on the upstairs portion of her existing home. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 2. At the outset of the scheduled hearing, Complainant averred that the issues involving scratches to the back panel of the bathtub enclosure and the operation of the bathtub door had been previously resolved. Regarding the remaining issues on the filed complaint, the weight of the evidence of record was sufficient to support a finding that the following constitute construction deficiencies attributable to Respondent:

a. Numerous areas of the “smooth wall” drywall finish reveal varying degrees of tape mud bumps and sanding marks. It was adequately shown that a “smooth wall” finish should not have drywall mud bumps or sanding marks.

b. There are a couple of paint touch-up areas still required around the bathtub enclosure where the primer is still visible. These areas are minor but nevertheless require remedial work. c. Although the applicable plans and specifications required use of nails to install the windows, Respondent utilized screws. Screws were shown to be an equal or better method of window installation and thus, Respondent’s use of screws was not shown, in and of itself, to constitute a workmanship deficiency. However, there are screws in specified windows that have not been puttied-over and painted and this procedure should have been accomplished. d. A screen for a specified window in the upstairs bathroom was not installed. e. There is a crack in the drywall and caulking adjacent to a specified window in the upstairs bedroom. f. There are a couple of nail heads protruding from the door frame for the bathroom door. g. Exterior paint work was not completed.

3. Evidence of record demonstrated that these parties have experienced a complete breakdown of their working relationship as manifested by, among other incidents, Complainant calling the police on Respondent to have Respondent removed from her property and Respondent’s president believing that Complainant had issued veiled death threats against him. Moreover, at the instant hearing, Complainant averred several times that she did not want Respondent back on her property. Sharply conflicting evidence regarding who was to blame for the total breakdown of the working relationship between the parties was such that no basis exists for the disbelief of either side’s version of the facts. 4. It also important to note that a civil court case is pending between these parties. Respondent contends that Complainant still owes money for the work performed by Respondent and Complainant has apparently filed some form of counterclaim for damages. This civil court action should resolve the monetary issue of who should bear the costs for any remaining necessary remedial work. 5. The instant matter is an administrative disciplinary proceeding relating to a contractor’s license. Thus, the Registrar is duty-bound to merely determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline. 6. Based on all of the facts and circumstances presented herein, it is determined that it would be unwise and ill-advised for the Registrar to issue an Order requiring Respondent to return to Complainant’s premises to perform any necessary remedial work and therefore, the Registrar should depart from its normal procedure of allowing a contractor a final opportunity to complete necessary remedial work as a condition to avoid otherwise appropriate license disciplinary sanctions. 7. 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 and Respondent’s attempts to comply, total compliance was not accomplished. However, the aforementioned breakdown in the working relationship between the parties had a definite bearing on Respondent’s failure to comply with the Agency directive. Thus, under these circumstances. a violation of the applicable charged section of the State’s Contracting laws is determined but no civil penalty is warranted.

CONCLUSIONS OF LAW

1. 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 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. It is further recommended, in addition to the above-provided penalty, that as an express condition for the next two (2) renewals of Respondent’s license, notwithstanding the existence or absence of any uniform assessment by the Registrar then in effect, Respondent shall be required to pay an additional $100.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. § 32-1132B. Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued.

Done this day, June 25, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors 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