ALJDEC

99F-2810-ROC-com · Registrar of Contractors · 2000-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2000 at 1:30 p.m. APPEARANCES: Complainants appeared on their own behalf; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Complainants presented evidence on Respondent’s failure to comply with the terms of the parties’ settlement entered into at the first hearing in this matter. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT A hearing was originally held in this matter on January 20, 2000, at which Respondent agreed to perform in a professional and workmanlike manner six specific items of repair by February 28, 2000 and Complainants agreed to accept such repairs in full satisfaction of their complaint to the Registrar of Contractors. The Registrar’s Inspector Phil Coscia had first directed Respondent to make these repairs in correspondence dated June 22, 1999. On February 18, 2000, the Registrar received Respondent’s notice of compliance. Complainants responded that the repairs were either not done or were done incorrectly. On March 17, 2000, the Registrar’s Inspector Phil Coscia performed a jobsite inspection and opined that Respondent had corrected in a professional and workmanlike manner four of the six items. Respondent had failed to correct two of the items, in relevant part as follows: 2. Clean and caulk plastic joints that separate existing slabs. Owners point out that concrete coating was not removed from plastic joints as per agreement. Inspector: Contractor has failed to remove the coating from plastic joints and coating is peeling due to poor bond.

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5. Fix unsightly brush marks in finish at entry to yard. The Fultons state that Contractor did no work to coating beyond front gate to correct this. Inspector: There are no brush marks in the coating as viewed at initial inspection, only a swirling type pattern. This would result from trying to similute the texture of natural stone. The coating requires no repair as there are no brush marks to correct.

6. Install new deco-drain between patio and pool deck. Mr. Fulton pointed out that the deco-drain installed between the rear patio and pool deck is not secured properly and “pops” when stepped on. Also, he states the drain lacks a bottom to it that will cause the water to undermine the soil under the slab along the drain. Inspector: I too found the drain needs to be firmly anchored with a provision allowing water to be retained in the drain where it can exit out the sides. The drain will not function as intended.

Inspector’s opinion: Contractor has failed to properly correct items 2 and 6 and in my opinion has not met compliance with the decision and order on this case.

On March 29, 2000, the Registrar ordered that a compliance hearing be set and, on April 11, 2000, issued a notice to both parties of a hearing to be held on June 6, 2000 at 1:30 p.m. On May 31, 2000, Respondent’s qualifying party requested that the compliance hearing be continued because Complainants allegedly had denied him access to perform further repairs after Inspector Coscia’s compliance inspection and he had made plans to attend a family “get-together” on June 5, 2000. On June 2, 2000, the undersigned denied the motion for continuance as untimely under A.A.C. R2-19-106.C. A copy of the denial was mailed to Respondent’s qualifying party at 1617 East Jefferson Street, Phoenix, AZ 85034, the same address as shown on Respondent’s letterhead and the same address to which the Registrar’s notice of hearing had been sent. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it neither appeared through a duly authorized representative or attorney, contacted the Office of Administrative Hearings to request that the time for the hearing be further delayed, nor presented any evidence at the hearing to dispute Complainant’s evidence of its failure to comply with the terms of the settlement and the Registrar’s inspector’s directive. Complainants testified and showed photographs that the surface of the concrete still showed brush marks. CONCLUSIONS OF LAW The Registrar’s decision and order following the January 20, 2000 hearing required Respondent to demonstrate compliance with the parties’ settlement, which incorporated Inspector Coscia’s original June 22, 1999 directive. It therefore bears the burden to show compliance. Since Respondent did not appear at or offer any evidence at the compliance hearing, it failed to carry its burden. The evidence shows that Respondent failed to comply with the terms of the parties’ settlement and the Registrar’s directive with respect to the plastic joints and deco-drain, items 2 and 6 of Inspector Coscia’s compliance inspection. The evidence also shows that Respondent failed to remove brushstrokes completely or adequately, despite item 5 on Inspector Coscia’s compliance inspection. Finally, construction is not an exact science and property owners should not expect a contractor’s workmanship to comply with minimum standards the first time or that repairs will never be necessary. Nonetheless, here Respondent performed the workmanship at issue in early March 1999, was directed to repair six items of workmanship in June 1999, finally agreed to correct these same six items in January 2000, and then performed repairs that failed to meet minimum standards on three of the six items. Respondent is not entitled to and Complainants should not be required to grant unlimited opportunities to Respondent to repair workmanship deficiencies. In this case, it has been given opportunities enough. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar suspend Respondent’s contractor’s License No. 126285, Class C-05 on the effective date of his decision in this matter, thirty-five days after the date of mailing. It is further recommended that Complainants be allowed to make a claim to the Residential Contractors’ Recovery Fund under A.R.S. § 32- 1132.A for the costs of repairing (1) the plastic joints, as described in Inspector Coscia’s compliance inspection report item no. 2; (2) the brush marks, as described in finding of fact no. 9; and (3) the deco-drain, as described in Inspector Coscia’s compliance inspection report item no. 6. Done this day, June 6, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of June, 2000, to: Registrar of Contractors Michael P. Goldwater, Director 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