ALJDEC decisions subject to certification as final

07F-T1318-ROC · Registrar of Contractors · 2008-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11th, 2008; 9:00 a.m. APPEARANCES: Complainant, Dr. Stephen Harkins, represented himself, and Happy Smiles Dentistry. Respondent Kincheloe Electric, LLC. was represented by Ms. C. Joy Elkins, Attorney-at-Law. Respondent, CNC Design and Construction, Inc., failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of these consolidated cases convened 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 Kincheloe Electric, LLC, (Kincheloe), is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-11 License number 208966. 2. Respondent CNC Design and Construction, Inc., (CNC), was a contractor doing business in Arizona under Class KB-02 License number 157730. That license has been suspended. Further, CNC stated in its Written Answer to Citation and Complaint T07-1318, CNC is no longer doing business. 3. Complainants in T08-1316, Dr. Stephen Harkins, and Dr. Swanny Estrada-Harkins, are a married couple practicing dentistry in Tucson. Complainant in T08-1318, Happy Smiles Dentistry, is the dental practice of Drs. Harkins and Estrada-Harkins. 4. Complainants filed these Complaints against the Respondents alleging fraudulent billing practices, poor workmanship, and eventual abandonment of a project to remodel their dental offices. The Complainants had contracted with CNC to perform the remodeling work, and Respondent Kincheloe was the electrical subcontractor for the project. 5. Citation and Complaint issued against CNC in T07-1316 on October 1st, 2007. Citation and Complaint issued against Kincheloe in T07-1316 on October 11th, 2007. Each Respondent filed a Written Answer to the Citation and Complaint. 6. Only the Complainants and Kincheloe appeared at the administrative hearing. They had achieved an agreement prior to the administrative hearing that Kincheloe had done nothing wrong in this case, and Complainants and Kincheloe stipulated on the record that Kincheloe ought to be dismissed, as all wrongdoing relative to either Complaint was perpetrated by CNC alone. 7. The stipulation to dismiss Kincheloe is further borne out by the allegation made by Complainants in their Complaint in T07-1318, wherein they allege that CNC’s wrongdoing included failure to pay the subcontractors on the project, including Kincheloe. 8. It further became evident at the hearing by the documentary evidence admitted pursuant to administrative notice of the agency record, and Dr. Harkins’s testimony, that Kincheloe had also been victimized by CNC’s fraudulent business practices. Unfortunately, it appears that CNC’s owner and operator, a Mr. William S. Cook, has departed Arizona on a permanent basis. 9. It does appear from the evidence and stipulations on record, that CNC did abandon and defraud these Complainants out of approximately $170,000.00, but that Kincheloe was also a victim of CNC, and not a perpetrator. 10. Notice is taken of CNC’s prior license record with the Arizona Registrar of Contractors, which includes a suspension for lack of bond. CNC’s license is currently suspended.

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. It appeared from the greater weight of evidence that Respondent Kincheloe did not violate the contractor laws of Arizona, and the parties’ stipulation to a dismissal of Kincheloe in T07-1316 is appropriate. 3. The preponderance of evidence did prove that Respondent CNC Design and Construction, Inc., did violate A.R.S. 32-1154.A.1, 7, 9, 10, and 3 (namely A.A.C. R4-9-108, Workmanship Standards), as alleged in the Citation and Complaint. 4. Based on CNC’s prior license record, and the seriousness of the violation in these cases perpetrated on members of the public and fellow contractors, revocation of the subject license is appropriate. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint No T07-1316, shall be dismissed on the effective date of this Order. It is further recommended that as to Citation and Complaint T07-1318, Respondent CNC Design and Construction, Inc.’s, Class KB-02 License number shall be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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, June 16th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488