ALJDEC decisions subject to certification as final

06F-T1243-ROC · Registrar of Contractors · 2007-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10th, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. John Valero, represented himself. Respondent, Kocjan Builders, LLC, was represented by Mr. Joel Kogan, Managing Member. Respondent, Sonoran Sunset Custom Construction, LLC, was represented by Mr. Steve Kuiper, Managing Member. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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, Kocjan Builders, LLC, was a licensed contractor in the State of Arizona, formerly possessing Class KB-02 License number 195387. That license was revoked by order of the Registrar on September 25th, 2006. The revocation was pursuant to Case No. T06- 0587 and failure to pay a civil penalty of $500.00 that had been assessed by the Arizona Registrar of Contractors. Appearing on that license as Qualifying Party is Mr. Joel Brett Kogan. 2. Respondent, Sonoran Sunset Custom Construction, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-02 License number 214647. Appearing on that license also as Qualifying Party is Mr. Joel Brett Kogan. Mr. Kogan became Qualifying Party on License number 214647 in February, 2006, simultaneous with its issuance from the Registrar. 3. Complainant is a homeowner residing in Sahuarita, Arizona. These Complaints concern the construction of a small guest house on Complainant’s property. Complainant and Mr. Kogan, then acting for Respondent Kocjan Builders, LLC, entered into a written contract and amendment for a price of $37,700.00. To date, $38,911.32 has been paid on the contract. However, the payment, for the most part, according to the evidence, has been made not by Complainant, but by Complainant’s in-laws, Mr. Clarence and Ms. Eva Costello, for whose benefit the house was being constructed. 4. Mr. Steve Kuiper, Managing Member of Respondent Sonoran Sunset Custom Construction, LLC, knew both of the contracting parties and brought them together for the purpose of contracting for the construction of the guest house, and later acted a go-between when the deal went sour. 5. At the time of the contract being entered into, Mr. Kogan informed and assured Complainant that the house would be completed in time for Thanksgiving dinner to be eaten inside it. As it happened, after about six to eight weeks construction all but ceased. The cessation was explained by Mr. Kogan as arising out of his loss of all his workers, and his need to concentrate on other of his construction projects. 6. Complainant was patient and agreed to wait until January, 2005, for completion. January, 2005, came and went and the house still was not completed. Complainant impressed on Mr. Kogan the need to finish the project because of his in-laws’ health problems, and his own financial problems. Mr. Kogan assured Complainant that he would begin seeking the permits. New permits had been made necessary because Pima County would not approve the original plans. This resulted in the amendment for an additional $4,000.00. 7. Later, the house still was not finished, Complainant tried to communicate with Mr. Kogan but he was unreachable. For one thing, he had changed his phone number. Complainant tried to reach Mr. Kogan through their mutual friend, Respondent, Mr. Kuiper. 8. Complainant filed this Complaint on June 12th, 2006. The Complaint was assigned to Registrar of Contractors Inspector Edward P. Monahan who conducted a job site inspection, and as a result of his inspection, issued a written Corrective Work Order dated, June 29th, 2006. The CWO, in essence, ordered the project to be properly completed within 15 calendar days, which was a reasonable amount of time. The house was not completed within the 15 days.

9. Eventually, around September, 2006, Complainant completed the home himself as owner/builder. He paid out of his own pocket an additional $8,225.96 to complete the project. This amount was documented for completion in accordance with the contract, and does not represent any extras or upgrades 10. Notice is taken of Respondents’ prior license records 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. Respondents are charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.1, 7, 23 and 3. 3. The evidence of record proved that Respondents did abandon the project in violation of A.R.S. 32-1154.A.1, failed to comply with the written directive from the Registrar (the Corrective Work Order) in a reasonable amount of time without valid justification in violation of A.R.S. 32-1154.A.23, and violated the workmanship standards at A.A.C. R4-9-108, in violation of A.R.S. 32-1154.A.3. 4. There is no wrongful or fraudulent conduct on Respondents’ part in violation of A.R.S. 32-1154.A.7 independent of the violations already concluded to have occurred. 5. Respondent Sonoran Sunset Custom Construction, LLC, is also concluded to be responsible for these violations as Mr. Kogan appears on that license as a Qualifying Party. Respondent Sonoran Sunset Custom Construction, LLC, is admonished that no violation of A.R.S. 32-1154.A.21 can be herein concluded as against it only because the instant Citation and Complaint did not give due notice to Respondent Sonoran Sunset Custom Homes, LLC, that this administrative process would deal with that. 6. A.R.S. 32-1156.01 allows for an Administrative Law Judge to order restitution be made to a Complainant in these circumstances as a condition of continued licensure.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent, Kocjan Builder’s LLC, Class KB-02 License number 195387, be again revoked on the effective date of his Order (40 days after the date of service shown by the Registrar’s certification on the Order). It is further recommended that Respondent, Sonoran Sunset Custom Construction, LLC, Class KB(02 License number 214647 be suspended until such time as the Registrar receives written proof that Respondent Sonoran Sunset Custom Construction, LLC, has made restitution to Complainant in the amount of $8,225.96. It is further recommended that in the event Respondent Sonoran Sunset Custom Construction, LLC, does make the aforementioned restitution, then the above-provided license suspension shall not occur, and Citation and Complaint No. T06-1243W 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, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, January 17th, 2007.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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