ALJDEC decisions subject to certification as final

07F-2752-ROC-com · Registrar of Contractors · 2010-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: February 17, 2010 APPEARANCES: Robert Kostyk appeared personally. McConnell Design and Construction, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order on Compliance: FINDINGS OF FACT 1. Robert Kostyk and Susan Kostyk are the Complainants in this matter. 2. McConnell Design and Construction, L.L.C., which is the holder of License No. 180784 issued by the Registrar of Contractors (“Registrar”), is the Respondent in this matter. 3. Pursuant to the Notice of Compliance Hearing issued by the Registrar, this matter came on for a compliance hearing before the Office of Administrative Hearings, an independent agency. The limited scope of the compliance hearing was “to determine whether Respondent has fully complied with the terms of the January 9th [sic] Order, absent unreasonable interference or denial of access by Complainants or whether Complainants have unreasonably interfered with or denied access to Respondent or its representatives.” 4. The Notice of Compliance Hearing advised the parties of the time, date, and location of the compliance hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 5. The commencement of the compliance hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the compliance hearing in Respondent’s absence. 6. On January 9, 2009, the Registrar issued an Order in Case No. 07-2752 providing that Respondent’s contracting license would be revoked on the effective date of the Order unless Respondent corrected “the defects identified in Findings of Fact 8 and 9 of the Administrative Law Judge’s Recommended Decision.” The effective date of the Registrar’s Order was February 18, 2009. 7. The Administrative Law Judge Decision contains the following Findings of Fact 8 and 9: 8. On December 15, 2008, [Inspector] Duncan performed [a] prehearing jobsite inspection. According to the Complainant[s], all corrective work is completed except for the remaining roof problems (the ponding by the air conditioner is no longer a problem), and a slight separation (1/2”) of a piece of fascia at the [S]outheast side of the home. 9. Photographic evidence (taken December 15, 2008) submitted during the hearing, shows water ponding/pooling on the garage roof as a consequence of a moderate rain, a rip (1”X2”) in the mastic on the garage roof, extensive ripples and depressions on the garage roof, extensive cracking on the mastic on the roof over the addition.

8. On February 16, 2010, the Registrar’s newly assigned inspector, Ted Gerold, performed a pre-hearing inspection to determine Respondent’s compliance with the Registrar’s Order. 9. At the compliance hearing, Inspector Gerold testified about Finding of Fact 8. Inspector Gerold noted that there are four areas on the roof over Complainants’ house with excessive ponding. There remains a problem with the fascia. 10. Inspector Gerold further testified that the ponding by the air conditioning, originally found to no longer be a problem, is currently a problem and requires remedial repairs. 11. Inspector Gerold opined that Respondent properly performed the remedial repairs to the items described in Finding of Fact 9. 12. Complainant Robert Kostyk agreed that Respondent complied with Finding of Fact 9. 13. Respondent is found to have failed to comply with the Registrar’s Corrective Work Order to perform repairs, as required in Finding of Fact 8. 14. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 180784 was suspended by operation of law on February 19, 2010 for lack of bond. CONCLUSIONS OF LAW 1. Pursuant A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of the authority to impose additional discipline upon that license in this matter. 2. Respondent violated the Registrar’s Order dated January 9, 2009, by failing to fully perform the conditions necessary to avoid the revocation of Respondent’s contracting license. Therefore, Respondent’s contracting license should be revoked, pursuant to the terms of the Registrar’s Order dated January 9, 2009. RECOMMENDED ORDER ON COMPLIANCE Respondent’s License No. 180784 shall be immediately revoked, pursuant to the Registrar’s Order dated January 9, 2009 issued in Case No. 07-2752. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, March 3, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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