ALJDEC decisions subject to certification as final

09F-T0257-ROC · Registrar of Contractors · 2009-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 2009; 10:30 a.m. APPEARANCES: Complainants Mr. Stephen and Ms. Caren Malchondia represented themselves. Respondent What’s Up Homes, LLC was represented by Mr. Ryan McDaniel, owner. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. This is a residential matter in which Complainants brought a Complaint against Respondent in the Arizona Registrar of Contractors‘ office alleging several material deviations and defects to the remodeling project they had contracted Respondent to perform in 2008. The original contract amount was $12,811.62. The Respondent’s written estimate is part of the Complaint as an attachment and it does not contain the Respondent’s assigned license number preceded by “ROC.” 2. The Complaint was assigned to Registrar of Contractors Inspector Greg Koeneman who performed a job site inspection in October of 2008 and, as a result, issued a written Corrective Work Order (CWO) to Respondent dated October 8, 2008 The CWO directed Respondent to perform several corrections to the project enumerated according to the Complaint’s original numbering of them. The CWO allowed Respondent 20 calendar days to perform the corrections, which was a reasonable amount of time. 3. The Inspector’s opinion of the poor workmanship by Respondent was corroborated by a certified home inspector, who testified credibly, and whose written report of the defects is record evidence. The defects were also corroborated by other professionals in the building industry who inspected Respondent’s work and who also testified credibly. 4. Respondent’s efforts to comply with the CWO were feeble at best. Respondent’s owner Mr. Ryan McDaniel testified that there were many aspects of the project that needed to be corrected, but his crew were denied access and verbally abused. However, the greater weight of evidence proved that while Complainants were understandably frustrated with the poor performance of Respondent, they were reasonably accommodating to Respondent’s owner and crew and if Respondent had been serious about performing up to workmanship standards and completing the project properly could have done so. 5. Inspector Koeneman testified that he performed a prehearing inspection and found that almost all of the original items on his CWO still had not been corrected. 6. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors which reveals that the subject license is now suspended for non-renewal. 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.1, 2, 7, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards), and 13 (namely A.R.S. § 32-1124.B). 3. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.1 and 2 by abandoning the contract and before abandoning the contract materially deviating from the plans and specifications, as proved by the ROC Inspector’s and the certified home inspector’s and the other trade witnesses’ testimonies. 4. Respondent failed to comply with the directives of the Registrar as set forth in the assigned agency Inspector’s CWO without valid justification in violation of A.R.S. § 32-1154.A.23. 5. Respondent’s poor workmanship violated A.A.C. R4-9-108, and therefore violated A.R.S. § 32-1154.A.3. 6. Respondent’s failure to include its assigned license number preceded by “ROC” on the estimate violated A.R.S. § 32-1124.B and therefore violated A.R.S. § 32-1154.A.13. 7. There is no substantial evidence of any wrongful or fraudulent act by the Respondent in violation of A.R.S. § 32-1154.A.7 independent of the other violations already concluded to have occurred. 8. The Respondent’s Class K-61 License number 232778 is suspended and therefore Respondent is legally competent to perform or subcontract the performance of any remedial action as a contractor until such time as the Registrar has restored the Respondent’s license to current status. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class K-61 License 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 that the subject license has been restored to current status and the corrective work performed, with the Registrar receiving written proof of that performance acceptable to the Registrar, on or before the effective date of this Order (40 days after the date of service appearing on the certification on the Order), then the above-provided license revocation shall not occur. It is further recommended that in addition to the above-provided penalty, if any, the Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154.D. Failure of Respondent to pay the entire amount of the aforesaid penalty on or before 30 days following the effective date of this Order shall result in automatic revocation of Respondent’s contractor license, effective on such date. No future license shall be issued to any entity consisting of persons associated with Respondent as defined at A.R.S. § 32-1101.A.5. In the event the Respondent properly accomplishes the corrective work and timely pays the civil penalty as indicated herein, Citation and Complaint T09-0257 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 after the date of that certification. Done this day, August 27, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com