ALJDEC decisions subject to certification as final

2010A-1138633-ROC · Registrar of Contractors · 2010-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared through his attorney, Paul Lenkowsky, Esq. Alston Quality Homes LLC (LLC) failed to appear. Fred Gene Knoke and Patricia Xythel Knoke dba First Class Concrete (PTR) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. Alston Quality Homes LLC (LLC) (“Alston” herein) is the holder of a Class B- (No. 202133) License issued by the Registrar of Contractors. 2. Fred Gene Knoke and Patricia Xythel Knoke dba First Class Concrete (PTR) (First Class Concrete” herein) is the holder of a Class C-09 License issued by the Registrar of Contractors. 3. These matters were consolidated for hearing pursuant to a joint motion from the Complainant and Alston because all three matters arise out of substantially the same facts and necessarily involve the same parties and issues. 4. The three matters all are residential matters wherein Alston constructed a new custom residence for the Complainant. 5. First Class Concrete performed concrete work on the Complainant’s residence as Alston’s concrete subcontractor for the construction project. 6. The Complainant was dissatisfied with the workmanship on his new home and with Alston’s failure to correct its work to within applicable workmanship and industry standards despite his repeated requests that it do so. 7. When Alston failed to comply with the Complainant’s repeated requests the Complainant filed a formal Complaint against Alston with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on April 6, 2009 issued a written Corrective Work Order directing Alston to perform designated corrective work on the Complainant’s residence. 9. The Complainant filed an Amended Complaint against Alston and the assigned Agency Inspector conducted another on-site inspection and on May 7, 2009 issued a second Corrective Work Order directing Alston to perform designated corrective work on the Complainant’s residence. 10. On May 19, 2009 Alston filed a formal complaint against First Class Concrete with the Registrar of Contractors alleging that the concrete work performed by First Class Concrete failed to comply with applicable workmanship and industry standards. 11. Undisputed credible testimony and evidence presented at hearing established that Alston failed to comply with the terms of the two Corrective Work Orders. 12. Undisputed credible testimony and evidence established that Alston’s corrective repair attempts on the area around the Complainant’s front door have damaged the Complainant’s solid Alder wood front door to the point where the front door requires complete replacement. 13. Undisputed credible testimony and evidence established that Alston’s construction work on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 14. Alston failed to present any evidence at the hearing in support of the allegations set forth in the Complaint that it filed against First Class Concrete. 15. Notice is taken of Alston’s excellent prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by Alston Quality Homes LLC of the provisions of A.R.S. § 32-1154A (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154A (3); NAMELY, Rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner).

2. Alston Quality Homes LLC, by the aforementioned default in appearance at the hearing for this matter, failed to sustain the required burden of proving the charges set forth in the complaint that it filed against Fred Gene Knoke and Patricia Xythel Knoke dba First Class Concrete (PTR) by a preponderance of relevant, substantial and probative evidence and consequently, the credible evidence of record does not support any findings that Fred Gene Knoke and Patricia Xythel Knoke dba First Class Concrete (PTR) have violated the charged provisions of A.R.S. § 32-1154A

RECOMMENDed orders 1. In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Class B- License of Alston Quality Homes LLC (LLC) shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms of the two written Corrective Work Orders issued in these matters directing Alston Quality Homes LLC (LLC) to perform designated corrective work on the Complainant’s residence and has properly replaced the damaged solid Alder wood front door. It is further recommended that if Alston Quality Homes LLC (LLC) properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided license suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Alston Quality Homes LLC (LLC) pay the sum of $1,000.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Alston Quality Homes to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Class B- License (No.202133) issued Alston Quality Homes LLC (LLC), effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Alston Quality Homes LLC (LLC), as defined in A.R.S. §32- 1101A (5), unless payment of any outstanding prior civil penalty is tendered. 2. In view of the foregoing it is recommended that the Citation and Complaint against Fred Gene Knoke and Patricia Xythel Knoke dba First Class Concrete (PTR) shall be dismissed. 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, August 13, 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