ALJDEC

99F-1979-ROC · Registrar of Contractors · 1999-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, Rick Romo. 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. Pursuant to contract, Respondent agreed to install tile in specified areas of Complainant’s home. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. The contract in question required Complainant to give Respondent a downpayment for the materials prior to commencement of the work, thereby leaving only the balance for the labor on the contract due upon completion. In this regard, it was undisputed that Complainant gave Respondent a check for $661.68. It was also not disputed that despite the fact that Respondent completed the installation, Complainant has not paid the balance due for the labor portion of the contract based on his contention that Respondent’s work was substandard. 3. The evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable tile work attributable to Respondent: a. In the front foyer living room entrance there is inconsistency in the chamfering of the tile at the edge of the riser. In addition, in this same area there is excessive unevenness in the height of the tiles, waviness in the tile pattern, and uneven tile edges at the end of the riser. b. In the front foyer great room entrance the radius edge of the riser shows a lack of uniformity of the tile edges in said area. c. There is a singular high tile in the center of the tile installation near the front foyer. In addition, there is a tile on the west wall in said area that was cut too short, resulting in a wider grout line than the other grout lines in said area. d. There is a distinct lack of uniformity in the grout color in specified areas. 4. 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. 5. Complainant testified to an extensive history of broken promises by Respondent to repair the above-described deficiencies prior to the filing of the instant complaint with the Registrar of Contractors and subsequent to issuance of the aforementioned Agency directive. In this regard, the following salient points were adduced from Complainant’s testimony: a. The tile was installed in November 1998. Shortly after Thanksgiving of that year, Complainant showed Respondent the problems with the tile and Respondent indicated they could be repaired. b. When Respondent failed to make arrangements with Complainant to repair the tile installation after the aforementioned November meeting, Complainant ultimately filed the instant complaint with the Registrar of Contractors. c. On or about January 20, 1999 (after the complaint was filed with the Registrar of Contractors), Complainant received a phone call from Respondent, indicating that he wished to correct the tile deficiencies and would call Complainant back in this regard. Almost two weeks went by before Complainant heard from Respondent again. d. On February 4, 1999, Respondent appeared at Complainant’s home and took a piece of tile with him indicating that the problems would be fixed. Complainant did not hear from Respondent during the remainder of the month of February. e. Respondent made an appointment with Complainant for March 22, 1999 to perform the work set forth in the above-described Agency directive. Complainant received a call from Respondent on March 22, 1999 indicating that the installer was running behind and the appointment would have to rescheduled for March 24. f. On March 24, 1999, an installer came out to Complainant’s home, looked at the extent of the problem and said he was not prepared to fix such an extensive problem and left. g. When nothing had been done by April 12, 1999, Complainant wrote Respondent a letter indicating numerous dates in April that Respondent may come to Complainant’s home to accomplish the required remedial work. Respondent set an appointment with Complainant for April 26 and appeared at Complainant’s home on said date with two installers but since he failed to bring the replacement tile the work could not be performed on that date. Later that day, after locating the tile, Respondent advised Complainant that they would return on April 27 to perform the remedial work. h. The April 27 appointment was canceled by Respondent with some excuse regarding a family illness in regard to one of its installers. 6. The overall conduct of Respondent displayed a disregard of both its duties and the entitlements of the homeowner, thereby constituting a wrongful act within the meaning of the charged section of the State’s Contracting laws. 7. Complainant indicated that he is totally disgusted with all of Respondent’s broken promises and canceled appointments. He further averred that under no circumstances will he allow Respondent to return to his property.

8. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the life of this homeowner. 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 complete the project. 9. Respondent is on notice that any remedial work that is to be performed by another contractor, as a direct result of the instant Order, must be preceded by adequate notice to Complainant. Moreover, no canceled appointments will be tolerated. Respondent will be given one, and only one, final opportunity to have the deficiencies in Complainant’s home corrected by another contractor. 10. 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 there are no prior disciplinary sanctions against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be excellent 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 tile contractor to accomplish appropriate and effective remedial work on the items set forth in Findings of Fact 3(a) through 3(d), above. 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 60 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 $125.00 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, August 20, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of August, 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