ALJDEC decisions subject to certification as final

09F-S0222-ROC · Registrar of Contractors · 2010-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Patrick Green. The Respondents appeared through their authorized representative, Ray Madzia. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The Class B- License of Respondent Golden Seal Homes LLC (LLC) was suspended on March 1, 2009 for nonrenewal. 2. Respondent Tombstone General Contractors LLC (LLC) is the holder of a Class KB-02 License issued by the Registrar of Contractors. 3. The two Respondents’ share the same qualifying party, nearly the same members, and have functioned as the same construction entity with Respondent Tombstone General Contractors LLC functioning as the successor in interest to Respondent Golden Seal Homes LLC. 4. The Complainant entered into a construction agreement with the Respondent Golden Seal Homes LLC (LLC) to construct a small (1200 square feet) residence for the Complainants. 5. During the course of construction the Complainants became increasingly dissatisfied with the workmanship on their new residence and with the Respondent’s’ failure to properly correct the unsatisfactory workmanship in their new residence to their satisfaction despite repeated requests that the Respondents do so. 6. When the Respondent failed to resolve the problems with the new residence the Complainants retained Southwest Building Inspection Service, Inc., to perform an inspection of their unfinished residence. 7. When the inspection service found forty one (41) different areas of deficient workmanship and opined that it would be more cost effective to tear the residence down and start over again rather than perform needed repairs the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. . 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondents to perform designated corrective work on the Complainant’s residence. 9. The assigned Agency Inspector confirmed all forty one (41) areas of deficient construction set forth in the inspection services’ written report and verified two additional areas of deficient workmanship that were not set forth in the inspection services’ report. 10. There was no dispute that the Respondents failed to comply with the terms and conditions of the Corrective Work Order. 11. Credible testimony and evidence established that the construction work on the Complainants’ unfinished residence falls far below applicable workmanship and industry standards and that the unfinished residential structure requires either very extensive corrective action or complete removal and replacement. 12. Credible testimony and evidence established that the Respondents failed to comply with applicable code requirements and that portions of the unfinished residence are unsafe and present a possible safety hazard. 13. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, particularly in view of the extraordinarily poor workmanship on the residence at issue. These Respondents should not be allowed to wreak any further havoc on the lives of these homeowners. 14. The Respondents’ actions, in failing to perform their work in a professional and workmanlike manner and in failing to comply with the terms and conditions of a Corrective Work Order are found to constitute a wrongful act. 15. Notice is taken of the License records of the Respondents with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondents of the provisions of A.R.S. § 32-1154A(2) (Disregard of building codes), A(7) (Wrongful Act), A(23)(Failure to take appropriate corrective action) and A(3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed orders 1. In view of the foregoing, it is recommended that the Class B- License of Golden Seal Homes LLC (LLC) be revoked. 2. In view of the foregoing, it is recommended that the Class KB-02 License of Tombstone General Contractors LLC (LLC) be revoked.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, February 11, 2010.

/s/M. Douglas 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