ALJDEC decisions subject to certification as final

2016A-3120-ROC · Registrar of Contractors · 2016-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cathy Kominsky and Catherine Duscher,

COMPLAINANTS,

v.

State Master Builders LLC,

License No: 274312

RESPONDENT.

No. 2016A-3120-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 22, 2016

APPEARANCES: Cathy Kominsky, Complainant; Steve Lawton, Registrar of Contractors Investigator; Ken Koziol, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

Complainants hired Respondent to do a remodel of a home. Respondent abandoned the project, failed to pay subcontractors, and kept appliances and supplies at Respondent’s representative’s home refusing to turn them over to Complainants. Respondent’s representative obtained a permit for part of the work but failed to obtain one for the remainder of the project even though he was instructed to do so by a city inspector.

Complainants filed a complaint with the Registrar of Contractors on August 18, 2016 after warning Respondent that they would be filing it. Respondent voluntarily surrendered its license on August 12, 2016. However, according to the Registrar of Contractors website, Stephen Holder is now listed as the owner of another license.

Although a Notice of Hearing was issued informing the parties of the date and time of the hearing, no one appeared at it on Respondent’s behalf.

Steve Lawton, a Registrar of Contractors Investigator, testified that he confirmed that Respondent abandoned the project. He also found that by failing to obtain a permit, Respondent had failed to abide by the building codes of Arizona and that, by surrendering the license, Respondent had refused to complete the project for the price stated in the contract.

Complainant Cathy Kominsky testified that she knows she cannot access the Recovery Fund but she filed the complaint to prevent Respondent from doing the same thing to others.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(1), (2), and (8).

A.R.S. § 32-1154(A)(1) provides grounds for suspension or revocation of a contractor’s license for abandonment of a project without a valid legal justification. The undisputed evidence at hearing was that Respondent failed or refuse to complete the project for Complainants, even prior to surrendering his license.

A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. By failing to obtain the required permits at the instruction of a city inspector, Respondent departed from building codes.

A.R.S. § 32-1154(A)(8) provides grounds for suspension or revocation of a contractor’s license for “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract”. Although Respondent surrendered his license and thereby rendered himself unable to complete the project for Complainants, the evidence at hearing did not establish that he requested additional compensation at any time. Therefore, his actions more closely fit the violation of abandonment.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. The Registrar of Contractors website indicates that Respondent had only one complaint against this license. However, Respondent surrendered the license. It is noted that Stephen Holder is now listed on another license under the name of Holder and Jeffery Contracting LLC, License Number 267593. Respondent’s Qualifying Party, Thomas Earle Young, is also named on another surrendered license under the name of State Master Builders, License Number 254256.

In this case, Complainants have established that Respondent violated A.R.S. § 32-1154(A)(1), and (2). Based on the evidence at hearing, Complainants have established that it would be appropriate to revoke Respondent’s license because of the lack of any justifiable basis for Respondent’s actions. It is noted that A.R.S. § 32-1154(A)(20) prohibits contractors from being named on a revoked license. Therefore, Registrar of Contractors License Numbers 267593 and 254256 should be revoked by operation of law as well.

RECOMMENDED DECISION

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s License Numbers 274312, 267593 and 254256 be revoked.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 22, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors