ALJDEC

99F-3145-ROC · Registrar of Contractors · 2000-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2000 APPEARANCES: Complainant, Jennifer Morse was present and represented by counsel, Judith Morse. Wesley DeBusk was present as a witness for Complainant. Jeremy Brunson and Joe Morse were present as well. Registrar of Contractors Inspector, John Ratcliff, was present. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Decision to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT Complainant entered into a contract with Respondent on February 17, 1998, for Respondent to perform repair work on Complainant’s residence, located at 5722 West Tierra, Glendale, Arizona. Portions of the residence had been damaged due to a storm. Complainant’s patio roof was lifted and blown onto the roof of the house, causing damage to the roof, resulting in large holes in the ceiling from water leakage, in Complainant’s bedroom and living room. The patio pillars were also damaged.

Respondent completed the job in April of 1998. Complainant paid Respondent $11,000 for the repair work. Respondent has been paid in full.

In early April 1998, Complainant contacted Respondent regarding concerns she had with the work Respondent had performed. Respondent came to the residence and offered to fix the areas of concern. In the summer of 1998, Respondent sent a worker to perform the corrective work. One of the problem areas was sanded and painted. However, Respondent did not correct all of the areas Complainant had requested be corrected.

Complainant attempted to contact Respondent on at least eight different dates. Respondent returned some of the calls. On April 21, 1999, Respondent told Complainant that he would again send someone out to address Complainant’s concerns. Respondent failed to follow through with repairs.

On May 10, 1999, Complainant filed a complaint with the Registrar of Contractors. On June 15, 1999, Inspector Ratcliff investigated the complaint by performing a job site inspection. Respondent failed to appear for this inspection.

Inspector Ratcliff issued a Corrective Work Order (“CWO”) on June 23, 1999. The CWO instructed Respondent as follows: - Install proper insulation in all areas that were required of him. - Cause the ceiling repair to blend with the rest of the ceiling. - The joint cuts on the eaves are poor and the repair is very visible, therefore correct by appropriate means. - The paint is also peeling on the eaves, therefore correct by appropriate means. - The mortar on the brick repair on the patio pillars is uneven and not uniform, therefore correct by appropriate means. - One of the brick columns is crooked, to be repaired by appropriate means. - There were exposed nails in the overhang on both sides of the house, to be corrected by appropriate means. - Paint was peeling on the patio drywall. The CWO instructed Respondent to determine the cause of the recurring peeling paint and correct it by the appropriate means.

The Inspector testified that all of the aforementioned work performed by Respondent fell below minimum workmanship standards.

Upon receipt of the CWO, Respondent contacted Complainant and scheduled the dates of August 30, 31 and September 1, 1999 to perform the corrective work. Respondent appeared at the residence on those dates, however only one item on the CWO was addressed, that of repainting the patio ceiling. Inspector Ratcliff testified that the corrective work performed fell below minimum workmanship standards.

Inspector Ratcliff conducted a pre-hearing inspection on the morning of January 5, 2000. Respondent was not present at the inspection. The Inspector testified that Respondent did not comply with the CWO.

By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

The undersigned Administrative Law Judge finds that Respondent failed to perform in a workmanlike and professional manner when it performed the repair work on Complainant’s residence. The Respondent failed to comply with the CWO as instructed by Inspector Ratcliff. The residence continues to be in need of major repairs. The undersigned Administrative Law Judge finds that Respondent’s failure to perform in a workmanlike manner is a wrongful act that resulted in Complainant being substantially injured. Complainant has endured financial hardship due to Respondent’s failure to properly perform the work Complainant paid Respondent in full to accomplish.

CONCLUSIONS OF LAW The undersigned Administrative Law Judge concludes that the uncontroverted evidence shows that Respondent has violated A.R.S. ( 32-1154(A) (7), (23), (3) and R4-9-108, as set forth in Findings of Fact #3, #4, #6, #7, #8 and #10.

The undersigned Administrative Law Judge concludes that Respondent has exhibited a flagrant disregard for its duties and responsibilities as a licensed contractor by failing to perform in a professional and workmanlike manner, compounded with its failure to appear for the job site inspection, pre-hearing inspection, and most importantly, the hearing of this matter.

The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend Respondent’s Class B license pursuant to A.R.S. ( 32- 1154.

RECOMMENDED DECISION In view of the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter (thirty-five [35] days after the date of mailing by the Registrar), that the Class B- license of Respondent be suspended until the Registrar receives proof that Respondent has performed or caused a properly licensed contractor to perform all work specified in the Corrective Work Order as set forth in Findings of Fact # 6.

It is further recommended that if Respondent accomplishes 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 B license be placed on active suspension for a period of seven (7) days, followed immediately by a period of 120 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 the 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 $350 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. ( 32-1154 (D). 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. ( 32-1101 (A)(5), unless payment of any outstanding prior civil penalty is tendered. Done this day, January 10, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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