ALJDEC

99F-M0618-ROC-com · Registrar of Contractors · 2000-11-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2000.

APPEARANCES: Complainant, Daniel Cohen, appeared in his own behalf. Respondent, Arizona Floor Professionals, appeared through its qualifying party, Kenneth C. Winham.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. The instant hearing was limited solely to issue of substantial compliance by Respondent with corrective work terms of the previously concluded settlement agreement that been read upon the record and that had resulted in the termination of the prior hearing in this matter, followed by the Registrar’s entry of an Order Closing the Citation and Complaint.

2. The prior Order in this case had become final and non-appealable on June 29, 1999 (thirty-five days after the Registrar’s adoption and approval of the recommendations submitted by this tribunal). Express language appearing in Finding of Fact Number 5 of the recommended decision contemplated the future filing of a new, separate complaint in the event of any asserted breach of the settlement agreement after the time for filing a petition for rehearing had expired. However, the Registrar apparently disregarded the final closed posture of the case as well as the specific contents of the prior Order, as entered. Instead of requiring the filing of a new, separate complaint that, as previously mutually agreed, would have been limited solely to the issue of compliance with the parties’ settlement, and processing such separate complaint to the citation and hearing stages, if necessary, the Registrar somewhat inexplicably, with questionable legal basis, elected to “re-open” this case approximately 14 months after the Order became final, requesting that the matter be scheduled for a compliance hearing.

3. The parties had concluded a settlement agreement at the original hearing, and the terms and conditions were read upon the record. A tape recording of a portion of those proceedings was re-played during the compliance hearing and the contents thereof have been further reviewed and considered.

4. The express terms of the aforesaid settlement agreement provided that Respondent would perform and Complainant would accept the accomplishment of “appropriate remedial measures on identified portions of the tile floor installation that contained visible tile or grout cracks.”

5. The above-described corrective work was the subject of a subsequent return to the jobsite by Respondent for the purpose of commencing and completing repairs in

the specified locations by replacing several cracked tile pieces and also treating areas in the grout containing cracks, chips or separations. In fact, it was admitted that Complainant had confirmed by a signed document that the repair work appeared to be satisfactory at the time performed and had remained acceptable in appearance for approximately one year afterwards.

6. The testimony at the compliance hearing was conflicting with respect to whether the prior repairs were unsuccessful or otherwise had fallen below minimum acceptable standards. The sworn testimonial evidence of the Registrar’s assigned Inspector tended to indicate that all repair work observed several days prior to the date of the scheduled compliance hearing appeared to fall within acceptable workmanship standards and tolerances. A random grout chip at one location is not found to preclude a finding of substantial compliance with the parties’ settlement agreement.

7. The present appearance of the tile and grout, at least in the relatively small areas that comprise less than 3% of the entire tile installation, remains highly unsatisfactory to Complainant. However, the responsibilities of a licensed contractor under the State’s contracting laws do not extend to assuring each of its customer’s subjective satisfaction with the results of all construction work. Any such consumer unhappiness, standing alone, is not the proper test of whether or not the construction work does reflect adversely upon a contractor’s workmanship, especially in these administrative proceedings which are disciplinary in nature. The evidence presented at the compliance hearing failed to establish that the performance by Respondent of the remedial work or that the present condition and appearance of the tile installation was below the applicable prevailing industry standards and tolerances, recognized by the Registrar of Contractors.

8. This tribunal certainly does not condone any course of action, especially by or attributable to a licensed contractor, that involves not returning phone calls or not responding in some fashion to reported complaints about work performed. Even if a communicated complaint, request or demand is felt by the license holder to be invalid or otherwise without merit, prompt and courteous attention should be given to timely responding to these contacts, especially when the individual matter has reached the formal disciplinary complaint and hearing stage. To the extent that the testimony of Complainant was accurate in asserting a lack of responsiveness or willingness on the part of Respondent to even discuss the pending matter after the agreed repair work was completed, such a course of conduct should be discouraged and discontinued or new internal procedures should be instituted that are designed to avoid or minimize future repetitions of unresponsive incidents, if any.

9. Complainant filed a document shortly after the compliance hearing had adjourned purporting to seek a rehearing and asserting that, during the presentation of testimony, one of Respondent’s witness had lied under oath. Not only was such a filing premature, but also it is doubtful whether any rehearing is allowable after a compliance hearing. In point of fact, both parties were specifically advised that the result of this proceeding would be the entry of a final administrative decision, directly appealable to the Superior Court.[1]

10. The serious allegations made in the filed post-hearing document must be treated as being in the nature of an ex parte communication which must be and was disregarded by the tribunal in formulating the findings, conclusions and

recommendations herein. Moreover, the claimed lie under oath related to hearsay statements of Complainant’s former spouse, made over two years before the settlement agreement. While admissible in these administrative hearings, hearsay evidence is usually given little, if any weight, and additionally, in this case, such statements are determined to have been wholly irrelevant with respect to the limited issues at the compliance hearing.

CONCLUSIONS OF LAW

1. The totality of the evidence sufficiently tended to establish that Respondent has substantially complied with the terms and conditions of the previously concluded settlement between the parties by undertaking and completing agreed remedial work on the jobsite that satisfied prevailing industry standards applicable to such work.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended on compliance hearing that the Registrar’s prior Order of Closing be affirmed on the basis of demonstrated substantial compliance by Respondent with the terms and conditions of the parties prior settlement agreement. The Registrar’s Order on Compliance Hearing shall be a final administrative decision, reviewable pursuant to the provisions of A.R.S. §12-901 et seq.

Dated: November 22, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

Attn: Joyce Armijo ----------------------- [1] In the event that any compliance hearing results in a finding of non- compliance, this finality treatment does not preclude the convening of one or more separate compliance hearings after subsequent efforts are made to comply, but the parties again fail to agree on the acceptability of the work or on other aspects of the compliance issues. The entered Order remains final as to the compliance hearing that was held. Conversely, if the result is a finding of compliance, the Order is treated as final, subject to a direct judicial review action.

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

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