ALJDEC decisions subject to certification as final

04F-L0200-ROC · Registrar of Contractors · 2004-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, June 24th, 2004; 9:00 a.m. APPEARANCES: Complainants, Mr. Scott E. Hunter, and Ms. Kathryn Geck- Hunter, appeared and were represented by Mr. Doug Sutherland, Attorney-at- Law. Respondent, Mr. Timothy Raymond Windholz, appeared and was represented by Mr. James Hart, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings, in Lake Havasu City, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Respondent herein, Mr. Timothy Raymond Windholz, doing business as T W Homes, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B. License number 093706. 2. Complainants contracted with Respondent on February 16th, 2001, for Respondent to construct a new addition to Complainants’ single- family residence in Lake Havasu City, Arizona. 3. As a result of Respondent’s construction, last performed on or about October 16th, 2003, Complainants had several workmanship issues and filed the instant complaint with the Arizona Registrar of Contractors on January 5th, 2004. 4. The complaint was assigned to Registrar of Contractors Inspector Cliff Corlett who, as a result of a job site inspection pursuant to the complaint, issued a written Corrective Work Order to Respondent dated January 12th, 2004. Complainants filed an addendum to the complaint on February 2nd, 2004, and pursuant thereto Inspector Corlett conducted a second job site inspection and issued a second Corrective Work Order to Respondent dated February 9th, 2004. 5. As to all items of dispute between the parties only the item in the second CWO remained to be heard at this administrative hearing. That item is the drainage ditch and perforated piping that was supposed to have been installed per plans at the atrium area of the addition, but were not. 6. The parties stipulated that all other workmanship items had been corrected to within minimum workmanship and industry standards, and could be removed from the hearing before the Registrar of Contractors. The parties stipulated that the remaining issues of a higher level or workmanship pursuant to contract would be resolved in civil court. 7. After much testimony from both parties Respondent Mr. Windholz was called as the final witness. He conceded that remedial action was necessary to correct the workmanship defect relative to the absence of the drainage and piping. During his testimony he was shown for the first time Complainants’ engineer’s report and recommendations, complete with stamped plans, of what remedial action should be taken to correct the defect. (Complainants’ Exhibit 2). This document had been created by Complainants’ engineer, Mr. Clifford Smith, only two days prior to the hearing 8. Viewing the engineer’s plans for the first time while testifying, Mr. Windholz stated that he had no problem with performing the corrective work as engineered and depicted in Complainants’ Exhibit 2. A short recess was called. 9. After the recess Mr. Windholz stated he would run the course of the drainage pursuant to guidance given by Mr. Smith. The parties agreed to split 50/50 the cost of the recommended guttering as shown in Complainants’ Exhibit 2. The hearing was then adjourned. 10. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

CONCLUSIONS OF LAW

1. This administrative hearing was held under authority of and pursuant to A.R.S 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2., 7., 23., and 3. 3. Credible evidence of record established that Respondent had violated A.R.S. 32-1154.A.2., 23., and 3. as set forth in the Citation and Complaint. 4. There was no evidence of a violation of A.R.S 32-1154.A.7. independent of the violations already concluded.

RECOMMENDED ORDER

In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 093706 be suspended until the Registrar receives written proof that Respondent has properly accomplished the corrective work set forth in Complainants’ Exhibit 2, following any necessary guidance from Complainants’ engineer, and including half the cost of the guttering. It is further recommended that if the Respondent properly accomplishes the above described corrective action on or before the effective date of this order (40 days after the date of service shown by the Registrar’s certification on the order), then the above provided license suspension shall not take place and Citation and Complaint No. L04- 0200 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the order shall be 40 days from the date of that certification. Done this day, July 6th, 2004.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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