ALJDEC

99F-L0174-ROC · Registrar of Contractors · 2000-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, February 1st, 2000; 8:45 a.m. APPEARANCES: The Complainant, Mr. Richard M. Hart, appeared in his own behalf. The Respondent, Mr. Mark Norman Engen, doing business as Golden Nail construction, failed to appear or be represented. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was scheduled for administrative hearing on February 1st, 2000, at 8:30 a.m. The Complainant appeared and was ready to proceed at that date and time, however the Respondent failed to appear. The Administrative Law Judge waited until 8:45 to convene the hearing, at which time the Respondent had not appeared, and failed to appear thereafter. Testimony was heard and other evidence admitted to record and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent in this case, Mr. Mark Norman Engen, doing business as Golden Nail Construction, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License Number 108558. The Respondent is also licensed as a contractor by the State of California. 2. The Complainant herein, Mr. Richard M. Hart, contracted with the Respondent on or about May 6th, 1997, for the Respondent to perform the following construction to Complainant’s part-time Parker, Arizona residence: “Redo roof over garage, resetting drains. Redo roof over patio, resetting drains. Add trusses and comp. Roof over main house. Add spiral staircase to observation deck over patio. Stucco fachia [sic] board on new trusses. Add stucco to parapet wall on observation deck. Add foot lights to observation area. Move AC unit and plumbing pipes as necessary. Purchase & install new Stone Heat Pump Unit on roof.” 3. The contract amount was $37,872.00, and the Complainant paid Respondent in full. 4. Complainant was under the impression that all the work for which he had contracted was completed when he received a letter from the local permitting authorities to the effect that the job had never received final permit. 5. In order to attend to the business of the final permit, the Complainant took a trip to Parker. Upon seeing the house and Respondent’s work, he ascertained that there were several defects, especially as to the roof. He saw where the house had sustained a great deal of water damage as a result of the leaky roof Respondent had constructed. 6. Complainant made several attempts to contact the Respondent to have him correct the defects to the construction he had done. All of Complainant’s contacts, including numerous phone messages, went unanswered. 7. Complainant then was forced to contact another appropriately licensed contractor, Durham Construction, of Parker, Arizona, and to contract with him to fix the defective construction of the Respondent. Complainant did contract with Durham Construction in the amount of approximately sixteen thousand dollars to correct the work on his house. 8. Complainant filed the instant complaint against the Respondent on April 27th, 1999. The case was assigned to Registrar of Contractor’s Inspector Mr. Barry Billings, who conducted a job-site inspection on May 11th, 1999. At the time of the job-site inspection, Durham Construction had already performed some of the corrective work to Respondent’s defective construction. Complainant acknowledged this circumstance, and added that he would forgive the Respondent’s liability to correct that portion of the work if only he would make the remaining corrections. 9. Inspector Billings issued his Corrective Work Order on May 12th, 1999. He ordered the Respondent to make several corrections to the house, among them to obtain final permit. An entire recitation of the seven described items in the Corrective Work Order need not be set forth at length here, and the Corrective Work Order is evidence of record in this case, as administrative notice of same was taken. Suffice it to say that never within the fifteen days allotted to him by the Inspector, nor at anytime thereafter unto the date of the hearing, did the Respondent make the first gesture toward making any sort of correction to this defective work on the Complainant’s house whatsoever. Complainant was forced to pay Durham Construction to make all corrections, as found above. 10. Registrar of Contractor’s Inspector Mr. Clifford Corlett succeeded Mr. Billings in the responsibility for this case. He conducted a pre- hearing job-site inspection on January 25th, 2000. He testified at this hearing, and corroborated the findings of his predecessor inspector. 11. Respondent has never even responded to the Complainant, and did not even appear at the administrative hearing to offer any defense, if any he could have, to the complaint. 12. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. This hearing was held under authority of and pursuant to A.R.S. §§32- 1156, and 41-1092. 2. The Respondent in this case, Mark Norman Engen, doing business as Golden Nail Construction, is cited by the Registrar in the citation and complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. The preponderance of evidence demonstrates that the Respondent did violate A.R.S. §32-1154.A.23., which prohibits a licensed contractor from failing to take appropriate corrective action in response to a Corrective Work Order. Clearly, Respondent did nothing to effect the corrections order by the Registrar of Contractor’s Inspector Billings. 4. The preponderance of evidence demonstrates that the Respondent did also violate A.R.S. §32-1154.A.3., which prohibits a licensed contractor from violating any administrative agency rule adopted by the Registrar. The citation and complaint references A.A.C. R4-9-108, Workmanship Standards, as the rule in question. Clearly, the work Respondent performed on the Complainant’s house was below minimum workmanship standards in practically every aspect. 5. The preponderance of evidence shows that Respondent also violated A.R.S. §32-1154.A.7., which prohibits a licensed contractor from any wrongful or fraudulent act as a contractor which results in another person being substantially injured. Although there is insufficient evidence to conclude that Respondent was fraudulent, there is ample evidence to conclude that his non-responsiveness to Complainant’s repeated efforts to contact him was wrongful, and contributed to the substantial injury suffered by the Complainant.

RECOMMENDED ORDER

Wherefore, it is hereby recommended that Respondent’s Class B License Number 108558 be revoked. Done this day, February 11th, 2000.

______________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________

-----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488