ALJDEC

99F-A0313-ROC · Registrar of Contractors · 1999-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent failed to appear. 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 oral agreement, Respondent agreed to install a roof, vinyl siding and a front entry portico on Complainant’s new home construction project. Complainant was acting in the capacity of owner/builder on the project. Complainant had known Respondent for several years and had used his contracting services on other residences.

2. Based on the fact that Complainant had used Respondent’s services in the past, he trusted him and did not feel the need for a formal written contract. Respondent merely gave Complainant a verbal estimate for what his services would cost and Complainant agreed that he would make progress payments as the work proceeded. It was undisputed that Complainant paid Respondent approximately $10,000.00 ($5,000.00 was for materials) on the vinyl siding portion of the project and paid approximately $1,800 for the roofing portion of the project. Complainant also gave Respondent a computer system, valued at approximately $3,700.00, for which he was to have received a credit against Respondent’s final labor charges.

3. Uncontroverted evidence of record established that the following constitute substandard and unacceptable workmanship attributable to Respondent:

a. Respondent commenced work on the project on or about April 1998. In December 1998, when he terminated working on the project, his work was still not complete.

b. Not only was the shingle installation on the roof not completed by Respondent but the required nailing pattern was not utilized, resulting in inadequate nailing of the roofing material.

c. The entryway portico was not completed by Respondent. Complainant has since completed this portion of the project through his own personal labor.

d. The vinyl siding application for the house was not only incomplete but it was shown that Respondent failed to install the required black tar paper and insulation behind the vinyl that had been installed been by Respondent. Complainant has since had this portion of the project completed by others. The remedial work in question necessarily required the removal of all vinyl siding installed by Respondent in order to install the proper backing behind the vinyl. The removed vinyl siding did not match the additional new siding supplied by the subsequent contractor and thus, was discarded, thereby adding to the expense of the remedial work.

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. It was only after the time period set forth in this Corrective Work Order that Complainant ultimately hired other contractors to perform the remedial work on the vinyl siding and Complainant, himself, completed the work on the framing of the entryway portico.

5. The aforementioned Agency inspector appeared at the instant hearing and testified that Respondent’s work on the portico was not only incomplete but that it was also poorly done. He further testified that Respondent failed to appear for the original jobsite inspection and the recent “pre-hearing” jobsite inspection which was conducted the day before the instant hearing.

6. Evidence of record established that Respondent entered into the contract and worked on the project at issue herein while his license was on suspension, in violation of the applicable charged section of the State’s Contracting laws. Moreover, it was shown that Respondent’s license did not allow him to perform carpentry or to install vinyl siding. Thus, Respondent performed work beyond the scope of his license in violation of the applicable charged section of the State’s Contacting laws.

7. Respondent’s over-all conduct on this project including, but not limited to, his failure to appear at the jobsite inspections, his failure to appear for the instant hearing, and his failure to comply with the above- described Agency directive indicates a total disregard for not only the rights and entitlements of Complainant but also Respondent’s responsibilities as a licensed contractor. Moreover, by his failure to appear for the instant hearing, Respondent failed to present any matters in defense or mitigation.

8. 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 the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. 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.

9. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate money damages. In the event that Complainant claims entitlement to monetary damages for Respondent’s failure to complete his work on the project, he must seek such relief in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW

1. The undisputed evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154A (23), (18), (17), (7), (1), 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-42 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the roofing deficiencies set forth in Finding of Fact 3 (b), above. 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 C-42 license be placed on active suspension for a period of five (5) days, followed immediately by a period of 180 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 $325.00 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, September 2, 1999

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater 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