ALJDEC decisions subject to certification as final

2022A-02719-CHC-ROC · Registrar of Contractors · 2022-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gerhard Gomez,

COMPLAINANT

Fordel Custom Homes, LLC

License No. ROC 330072,

RESPONDENT

No. 2022A-02719-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 19, 2022; the record closed on November 1, 2022

APPEARANCES: Complainant Gerhard Gomez appeared on his own behalf. Anthony Kurth appeared on behalf of Respondent Fordel Custom Homes, LLC. Arizona Registrar of Contractors Investigator Michael Wiskow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Fordel Custom Homes, LLC (“Respondent”) is the holder of License No. 330072 issued by the Arizona Registrar of Contractors (“Registrar”). According to Anthony Kurth’s testimony at hearing, he is currently a Manager for Respondent.

Gerhard Gomez (“Complainant”) purchased a home in or about October 2020, from Anthony Joseph Kurth, who constructed the home under Fordel Development, LLC’s license number 284258. According to the Registrar’s public website, that license was revoked on February 1, 2022.

On or about April 5, 2022, Complainant filed a Complaint against Respondent with the Registrar alleging abandonment and poor work with respect to the construction of the home.

The Registrar assigned the Complaint to Investigator Michael Wiskow. A jobsite inspection was conducted on July 6, 2022. Respondent did not attend the jobsite inspection. During the jobsite inspection, Investigator Wiskow took photographs of the deficiencies he verified. Those photograph are contained in the Administrative Record.

Investigator Wiskow’s Jobsite Inspection Notes state the following:

Compliance Item: 1 - 1.Roof coating was done very lightly and multiple areas have the foam exposed to the elements.

Investigator’s Observation: The coating on the flat roof is thin in several

areas. There are some edges that have experienced damage from exposure.

Contractor should repair by appropriate means.

Compliance Item: 2 - 2. The painter came and filled multiple cracks in stucco but did not match the paint well, especially on eastside of house, entrance of house, and a wall in the atrium. It was poor workmanship.

Investigator’s Observation: The stucco crack repairs do not match the existing stucco.

Contractor should repair by appropriate means.

Compliance Item: 3 - 3. Turf in backyard near pool not secured well, nails exposed, turf has some quality issues.

Investigator’s Observation: The turf in the back yard is lifting, loose and nail heads are protruding.

Contractor should repair by appropriate means.

Compliance Item: 4 - 4.Pool pump not functioning.

Investigator’s Observation: Repaired prior to JSI

Compliance Item: 5 - 5.Bathroom near garage, LED mirror is not working.

Investigator’s Observation: Repaired prior to JSI

Compliance Item: 6 - 6.Front door lock still not functioning well and paint

chipping off.

Investigator’s Observation: Repaired prior to JSI

Compliance Item: 7 - 7.Back large sliding door lock still not working properly

Investigator’s Observation: Repaired prior to JSI

Compliance Item: 8 - 8.Exposed hole in small garage coating (north end)

allowing entry of bugs and other elements

Investigator’s Observation: There is a hole in the foundation under the epoxy in the 3rd stall garage.

Contractor should repair by appropriate means.

Compliance Item: 9 - 9.Thermostat for wine closet not installed as requested. For some reason, drywaller/painter coated and painted over exposed wire.

Investigator’s Observation: There was a thermostat wire exposed in the wine chiller room. Drywallers have covered upo the wire.

Contractor should relocate wire, supply and install appropriate thermostat for wine chiller room.

All errors in original.

Investigator Wiskow testified that he did not issue a Written Directive to Respondent because Respondent’s license was suspended effective June 7, 2022, and therefore, Respondent could not perform any corrective work.

Investigator Wiskow forwarded the Complaint to the Registrar’s Legal Department.

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

Investigator Wiskow testified consistently with the findings contained in his Jobsite Inspection Notes. Investigator Wiskow testified that the coating on the roof is “thin” and that the areas of the roof at issue are not in the area of the solar panels added by Complainant. Therefore, the areas in question were not modified by Complainant. Investigator Wiskow testified that while the stucco cracks have been repaired, the “color is not close.” Regarding the turf, Investigator Wiskow testified that it is “lifting and loose” and “nail heads are protruding.”

Investigator Wiskow further explained that the Registrar determined to proceed against Respondent’s license due to Fordel Development, LLC’s revoked license status.

The evidence of record demonstrates that Respondent was performing the warranty work for which Fordel Development, LLC would have been responsible, as Respondent had performed some of the warranty work and responded to certain items of Complainant’s Complaint. Further, the Administrative Record contains the following agreement on Respondent’s letterhead with Respondent’s license number, and signed by Anthony Kurth, on behalf of Respondent:

AGREEMENT BETWEEN FORDEL CUSTOM HOMES, LLC AND NINA AND GERHARD GOMEZ REGARDING COMPLETION OF OUTSTANDING TASKS AT THE NEW RESIDENCE AT 2004 E SOLAR DRIVE, PHOENIX, AZ 85020

Items to be completed at no additional charge:

o CLOSET ROD (BY POWDER ROOM)

o PANTRY LATCH

o BARN DOOR ADJUSTMENT

o 3RD CAR GARAGE TRIM

o EXTERIOR WALL PAINTING

o PAINT EXTERNAL STEMS

o HOLE IN FLOOR BELOW KITCHEN SINK

o CORNER BEDROOM CAULKING OF WINDOWS

o REFRIGERATOR TRIM/FINISH

o LAUNDRY DRY WALL REPAIR

o DRY WALL JACK AND JILL BATH, TOWEL BAR

o 2 DOOR HINGE STOPPERS

o 3 CEILING CORNERS FAMILY ROOM

o OIL ISLAND PANEL COVER, EVEN OUT IMPERFECTIONS

o PAINT PANEL ON FIREPLACE

o ADJUST LOCK ON FR SLIDER DOOR

o SHELF IN LOWER KITCHEN CABINET CHANGE FRONT DOOR KEY

o POOL POP-UPS

o TOWEL BAR JACK AND JILL BATH

ALL ELEMENTS TO BE COMPLETED BY OCT 23RD, 2020

Complainant concurred with Investigator Wiskow’s testimony. Complainant testified that he had multiple conversations with Mr. Kurth regarding the warranty work, including the issues with the roof and the mismatched stucco. Regarding the stucco, Complainant testified that Respondent sent painters to repair the cracks and that they used a different material for patching resulting in an “obvious change in texture.”

Mr. Kurth testified that he went to the property “numerous times” and that Respondent “is not trying to escape liability.” Mr. Kurth asserted that the issue with the roof is due to the addition of solar panels, and because Complainant modified Respondent’s work, Respondent should not be responsible for any warranty work on the roof. Regarding the stucco cracks, Mr. Kurth testified that they “match as closely as possible.” Mr. Kurth acknowledged that the hole in the garage needs to be repaired. Regarding the wine cellar, Mr. Kurth testified that this was converted to a pantry and that Respondent left the equipment in the event Complainant wants to use it as a wine cellar in the future.

Administrative notice is taken of Respondent’s prior License record on October 31, 2022. Such prior License record reflects that Respondent’s License No. 330072 was first issued on August 4, 2020, and is active. Such prior License record also reflects that there is the instant open complaint, one resolved/settled complaint, and one complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violation(s) by a preponderance of the evidence. A party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-1154(A) provides the following:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

A.A.C. R49108(a) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The credible, substantial, and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not perform its work on the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

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. 330072 for a period of seven (7) days.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, November 4, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

[email redacted]

Mike Wiskow

[email redacted]

Gerhard Gomez

[email redacted]

Fordel Custom Homes, LLC

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000