ALJDEC

99F-2626-ROC · Registrar of Contractors · 1999-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 1999 at 1:30 p.m. APPEARANCES: Complainants appeared on their own behalf; Respondent appeared through its owner and qualifying party, Dan Turner. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

During the hearing, Respondent offered to correct those portions of the hardwood floor it had installed in Complainants’ residence that allegedly evidenced installation in an unprofessional and unworkmanlike manner; Complainants accepted the offer, with certain conditions; and Respondent agreed to comply with Complainants’ conditions. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. The Registrar of Contractors issued License No. 104582, Class C-8 to Respondent, a limited liability company, on October 21, 1994. On or about December 28, 1998, Respondent contracted to install a tropical mahogany hardwood floor in certain areas of Complainants’ residence, including a flight of stairs, for $5,400.00. Respondent’s workmen subsequently installed the floor. Complainants were dissatisfied with the installation and, on March 3, 1999, made a complaint against Respondent’s license to the Registrar, alleging seven specific workmanship deficiencies. The Registrar’s Inspector John Ratcliff performed a jobsite inspection and, on April 29, 1999, on the Registrar’s behalf directed Respondent to correct by appropriate means five of the seven items alleged. On May 21, 1999, Complainants informed Inspector Ratcliff that Respondent’s workmen had not corrected all the items listed on the Registrar’s directive in a professional, workmanlike, or expeditious manner, that both Complainants had been forced to take many days off work, and that Respondent’s workmen were dilatory and unprofessional. In due course, the Registrar issued a Citation and Complaint against Respondent’s license, which charged Respondent with violations of A.R.S. § 32-1154.A.7,[1] .23,[2] and .3.[3] Respondent denied that any corrective action remained to be performed and a hearing was scheduled. On the morning before the hearing, Inspector Ratcliff performed a prehearing jobsite inspection. Inspector Ratcliff testified at the hearing that, although Respondent had satisfactorily corrected two of the five items and he saw evidence that Respondent had attempted to correct the remaining three items, in his opinion, the following deficiencies resulted from the corrective work or were noted on the original directive and still needed to be corrected: h. Gaps between the planks on the landing should be filled; i. The carpet should be retacked and restretched where it meets the hardwood floor; j. Glue or some other sticky substance should be removed from the first and third steps and in front of the loveseat in the living room; k. Certain areas of the quarter round molding and flooring on the stairs should be replaced because of excessive nail holes; l. Other areas of the molding, stair nosing, and flooring without excessive nail holes had filler coming out the nail holes, which should be replaced; m. Gaps existed on one side of most of the stair nosing, which should be replaced or filled; n. A joint in the quarter round molding behind the loveseat should be repaired; o. The molding should match in all areas; p. Loose trim around the handrail should be securely affixed; q. A stain on the wall should be painted; and r. Trim that Respondent installed prevents a recessed light fixture on the stairwell from being opened. Respondent agreed to repair in a professional and workmanlike manner within two months of the date of the hearing all the deficiencies that Inspector Ratcliff noted in his inspection. As to the light fixture described in Finding of Fact 7.k above, Respondent did not install the light fixture but agreed to provide additional trim if Complainants chose to remove the trim when replacing the light bulb or to remove and replace the trim if they chose to hire appropriately licensed contractors to move the light. Complainants agreed to allow Respondent’s employee Terry Smart, but no one else, to perform the corrective work if Mr. Smart would agree to work on weekends so neither Complainant would be required to miss additional work and Respondent agreed to provide extra trim and flooring. Respondent agreed to Complainants’ conditions if they would allow Mr. Smart to make a material list so that he could quickly complete the job. Complainants agreed to this condition. Complainants agreed to withdraw their complaint and to consent to the entry of an order closing the citation and complaint. However, the closure of this administrative action is without prejudice to the filing of a new complaint if Respondent breaches the terms of the parties’ settlement agreement. These administrative disciplinary proceedings are cut short by the parties’ entry into the settlement agreement, which is presented to the Registrar of Contractors for approval and adoption. Consequently, Respondent is advised that any future breach of the terms of the settlement agreement will not only constitute grounds for a new complaint but also will warrant treatment as a circumstance in aggravation. All rights and defenses of the parties are deemed to have been merged into the settlement agreement and, if any timely petition for rehearing or new complaint is filed in the future, the sole issue for determination shall be whether Respondent has performed its obligations under the terms of the settlement agreement. The terms of the foregoing settlement agreement are fair and reasonable, under all the circumstances, and the agreement is the product of knowing and voluntary action on the part of each party. CONCLUSIONS OF LAW 1. Public policy favors settlement of disputes and adverse parties should be free to adjust their differences by entry into agreements or stipulations. 2. The settlement reached and submitted during the hearing of this matter, having been found to be reasonable and voluntarily made, warrants termination of the hearing and closure of the charges contained in the Citation and Complaint. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar close the Citation and Complaint against Respondent’s License No. 104582, Class C- in Case No. 99-2626. Done this day, October 7, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar.”

[3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826