ALJDEC

99F-2810-ROC-com-rhg · Registrar of Contractors · 2000-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2000 at 9:00 a.m. APPEARANCES: Complainants did not appear; Respondent appeared through its qualifying party, Jim Harrison. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Based upon the entire record in the matter, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Background Respondent contracted to apply surfaces that looked like sandstone to the exterior patio and walkways at Complainants’ residence. Complainants subsequently made a complaint to the Registrar of Contractors against Respondent’s contractor’s license about Respondent’s performance of the contract. A hearing was first held on Complainants’ complaint on January 20, 2000. At that hearing, the Registrar’s Inspector Phil Coscia testified that, on June 22, 1999, he directed that Respondent remedy six of Complainants’ original 11 complaints. The original directive did not include the deco drain. Respondent agreed to perform and Complainants agreed to allow Respondent to perform the six items of corrective work. The undersigned therefore recommended that Registrar close Complainants’ complaint against Respondent’s contractor’s license. The Registrar accepted this recommendation on January 31, 2000, effective March 11, 2000. The parties admitted at the first hearing that Complainants had not paid the full contract price, Respondent had filed a lien against their residence, and collateral civil proceedings had been or shortly would be commenced. Respondent subsequently informed the Registrar that it had completed the items of corrective work. Complainants disputed that Respondent had correctly or completely performed the repairs. On March 17, 2000, Inspector Coscia performed a compliance inspection and prepared a report that opined that Respondent’s workmanship complied with applicable minimum workmanship standards in all respects, except the joints separating the concrete slabs and a deco drain both needed repair in his opinion. Complainants refused to allow Respondent access after the compliance inspection to perform any additional repairs. The Registrar scheduled a compliance hearing on June 6, 2000 at 1:30 p.m. Respondent requested a continuance, which the undersigned denied as untimely. Unfortunately, Respondent had changed its office address and informed the Registrar, but not the Office of Administrative Hearings. Respondent did not receive a copy of the order denying the continuance. A compliance hearing was held on June 6, 2000, at which Complainants but not Respondent appeared. The undersigned recommended that Respondent’s contractor’s license be suspended and that Complainants be allowed to make a claim to the Residential Contractors’ Recovery Fund for the remaining items of repair. The Registrar substantially accepted the recommended decision on June 13, 2000, effective July 23, 2000. On June 14, 2000, Respondent requested a compliance rehearing. The Registrar granted rehearing on July 17, 2000. The Compliance Rehearing On July 28, 2000, the Registrar mailed notice of a compliance rehearing scheduled to begin at 9:00 a.m. on October 12, 2000 to Complainants at 2346 W. Shaw Butte, Phoenix, AZ 85029, the same address shown on their original complaint form and the same address to which all the other notices of hearing had been sent. Although the beginning of the compliance rehearing was delayed seventeen minutes to allow both parties additional travel time, Complainants did not appear, personally or through an authorized representative, or contact the Office of Administrative Hearings to request a continuance. Complainants presented no evidence at the compliance rehearing that any additional work needed to be done or that they desired or would allow Respondent to perform any additional work. Respondent’s qualifying party testified that the deco drain was not part of the original contract, that he had installed it as a favor to Complainants, that the collateral civil action regarding the parties’ contract had been finally decided, and that Complainants still had not paid Respondent the full contract price. CONCLUSIONS OF LAW The record does not show that Complainants will allow Respondent to perform any additional work or that they have any claim for the cost of repair that could be paid by the Residential Contractors’ Recovery Fund, given Complainants’ failure to pay the full contract price.[1] Complainants’ failure to appear at the compliance rehearing indicates that they have obtained all the relief they want in the civil proceeding. The record does not support a conclusion that Respondent’s license should be unconditionally suspended or otherwise additionally penalized. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors close the Citation and Complaint against Respondent’s License No. 126285, Class C-05, in Case No. 99-2810. Done this day, October 12, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of October, 2000, to:

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

By ___________________________

----------------------- [1] See A.R.S. § 32-1132(A).

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