ALJDEC decisions subject to certification as final

2019A-05103-CHC-ROC · Registrar of Contractors · 2020-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Myron James Rambousek,

COMPLAINANT

Kenneth Knock Development LLC,

License No. 289067,

RESPONDENT

No. 2019A-05103-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 15, 2020

APPEARANCES: Complainant Myron James Rambousek appeared on his own behalf. Kenneth Knock, Owner and Qualifying Party, appeared on behalf of Respondent Kenneth Knock Development LLC, which was represented by J. Andrew Jolley.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Kenneth Knock Development LLC (Respondent) is the holder of License No. 289067 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 29, 2018, Myron James Rambousek (Complainant) entered into a purchase contract with Dale J Ring DDS Ltd 401K Plan for the purchase of a new home being built by Respondent. Under the initial terms of the contract, close of escrow was to occur on September 10, 2018. Through a series of addendums, the close of escrow date was extended to October 1, 2018; October 26, 2018; November 2, 2018; December 27, 2018; January 11, 2019; February 11, 2019; March 28, 2019; April 15, 2019; and April 30, 2019. Complainant

On or about October 9, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 20, 2019.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: Install soft close drawer rails in cabinets.

Investigator’s Observation: The cabinet doors are soft close per the complainant. The drawers don’t appear to be soft close and if soft close rails are installed, they aren’t functioning as intended.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 2: Repair torn window screens/scratched frames

Investigator’s Observation: The front window has a screen that has pulled from the track. No scratched frames were pointed out. The screens shall be corrected in an appropriate manner, one time in the first year

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 5: Install ceiling fan switches

Investigator’s Observation: The complainant relayed that he provided a schematic to the contractor (at the contractor’s behest) showing the desired locations for electrical fixtures. This included can lighting, fan locations, garage lighting and switch locations. At issue is the ceiling fan ‘dimmer’ switches for operating the fans. They don’t appear to be installed.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 7: Add 2 garage lights

Investigator’s Observation: The complainant relayed that he provided a schematic to the contractor (at the contractor’s behest) showing the desired locations for electrical fixtures. This included can lighting, fan locations, garage lighting and switch locations. There are 2 J boxes installed over the garage opener rails but no fixture is installed. The fixtures appear on the hand written schematic

Governing Rule: Statute ARS 32-1154.A.(2)

Complaint Item 9: Install access door for Jacuzzi tub plumbing

Investigator’s Observation: Pursuant to IRC 2012 P2720.1, the plumbing equipment shall be accessible by way of a door. No access door was noted at the time of inspection.

Governing Rule: Statute ARS 32-1154.A(2)

Complaint Item 11: Rework fire sprinkler pipe behind garage door.

Investigator’s Observation: There is an overflow pipe directly behind the garage service door to the rear yard. This pipe and the pressure relief pipe for the water heater prevent the door from opening to 90 degrees. The door only opens just past 3⁄4’s The respondent shall correct this condition in an appropriate manner.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 13: Provide fire sprinkler instructions/maintenance

Investigator’s Observation: It is customary for all manuals to be included in a packet at move-in. The respondent shall provide any fire sprinkler documents in an appropriate manner.

Governing Rule: Statute ARS 32-1154.A.(3)(namely AAC R4-9-108)

Complaint Item 19: Add can light dimmer switches over family room and patio

Investigator’s Observation: The complainant relayed that he provided a schematic to the contractor (at the contractor’s behest) showing the desired locations for electrical fixtures. This included can lighting, fan locations, garage lighting and switch locations. The respondent shall correct the condition in an appropriate manner.

Governing Rule: Statute ARS 32-1154.A(2)

Following the issuance of the written directive, Respondent fixed the window screen and provided Complainant with the fire sprinkler instructions. After the deadline in the directive expired, Investigator Dimond was notified not all of the corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified that on May 11, 2020, he conducted a prehearing inspection at which time he noted items 1, 5, 7, 9, 11, and 19 remained uncompleted. Investigator Dimond explained his position that the fire sprinkler pipe behind the garage door needed to be moved because local building codes required that egress doors had to open to 90 degrees and the pipe behind the door prevented the door from opening that far. While Investigator Dimond acknowledged that one could read the building code could be read to mean that only one egress door had to open to 90 degrees, he maintained his belief that the door should have opened at least 90 degrees.

Complainant testified that the home took several months longer to finish than originally agreed upon. Complainant asserted that he paid for upgrades and those were communicated to Respondent. Complainant indicated that he directly provided Respondent with the drawing of the home with the locations of the electrical fixtures. Complainant stated that Respondent only corrected the screens after the date of the directive. Complainant posited that Respondent did not have the money to fix the remaining issues.

Mr. Knock testified that he realized on the last walkthrough that he had not installed the access door on the Jacuzzi tub. Mr. Knock denied that the garage door was not in compliance with the local building codes. Mr. Knock asserted that upgrades should come from the seller.

Administrative notice is taken of Respondent’s prior License record on June 2, 2020. Such prior License record reflects that Respondent’s License No. 289067 was first issued on January 3, 2014, and is current. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that the pipe behind the garage door prevented the door from opening at least 90 degrees and that local building codes required the egress door to open at least 90 degrees. Therefore, Complainant established that Respondent departed from or disregarded applicable building codes in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent’s work identified in the written directive was not in conformity with the Registrar’s standards. Even if the pipe behind the garage door was not a violation of applicable building codes, it was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 289067 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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

-54864001

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-137160-45720000Done this day, June 2, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000