ALJDEC - Licensing

2022A-07472-ROC · Registrar of Contractors · 2023-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bernie Koenig,

COMPLAINANT

v.

Casey Daniel Rodman

License No. ROC 324291,

RESPONDENT

No. 2022A-07472-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 28, 2023

APPEARANCES: Complainant Bernie Koenig appeared on his own behalf. Registrar of Contractors Investigator Brian Binkney appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Casey Daniel Rodman (Respondent) is the holder of License No. 324291 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 9, 2021 Bernie Koenig (Complainant) agreed to have Respondent build a home in Bullhead City, Arizona. The contracted price was $167,260.00.

On or about August 31, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Sheldon White, and an initial inspection was conducted in September 2022. The complainant was closed and then re-opened. The jobsite inspection was performed on December 6, 2022.

Investigator Binkney then issued a written directive on or about December 19, 2022, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 01/03/2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 7 - desert landscaping was not done at all per agreement of contact

Investigator’s Observation: No desert landscaping installed per plans.

RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Exterior windows have no sealant/caulk on top of window frame.

Investigator’s Observation: windows previously replaced by respondent. all sides of windows were caulked expect for the top.

RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 12 - kitchen outside door has light all away around it and is not lined up right

Investigator’s Observation: Exterior door in kitchen not sealed properly and allows dirt and wind to come into residence. Exterior doors should be sealed on all six sides and finished per specifications. Some infiltration of moisture and dust is normally noticeable around doors and windows, especially during high winds and heavy rain. Excessive infiltration resulting from open cracks, poorly fitted doors and windows or poorly fitted weather stripping is unacceptable. RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 16 - Grout in master shower missing or falling out near bottom.

Investigator’s Observation: Missing or irregular grout. RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 17 - Lower cabinets splitting apart.

Investigator’s Observation: Lower cabinets to the left pulling apart were cabinets meet. Not properly secured. RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 18 - Exterior door in garage not finished.

Investigator’s Observation: Exterior garage in door (leading to backyard) drywall not finished able to see light coming through exposed interior. Some infiltration of moisture and dust is normally noticeable around doors and windows, especially during high winds and heavy rain. Excessive infiltration resulting from open cracks, poorly fitted doors and windows or poorly fitted weather stripping is unacceptable. RESPONDENT TO MAKE NECESSARY REPAIRS BY APPROPRIATE MEANS.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On January 19, 2023, 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), and A.R.S. § 32-1154(A)(22).

On or about February 3, 2023, Respondent e-mailed an Answer to the Registrar, stating, “[e]verything has been completed to industry standards and per contract...”.

On or about February 23, 2023, a Notice of Hearing was issued setting a hearing on March 28, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Binkney testified as to the Registrar’s involvement and the above timeline.

Investigator Binkney testified that while Respondent arrived 30 to 45 minutes late for the Jobsite Inspection, Investigator Binkey made sure that Respondent was aware of the items needing correction.

In addition, Investigator Binkney testified that he believed the corrective work period was sufficient to perform the repairs and that Respondent failed to make the repairs and did not request an extension.

Complainant testified that he had paid well over $182,000.00 on the project. Further, it was his belief that the project was to be completed in June 2021, however it still remained unfinished almost two years later.

Further, Complainant testified that Respondent sent workers in February 2023 after the Directive expired, to work on item 9 (sealant on exterior windows), and item 17 (kitchen cabinets) and those were satisfactorily repaired. Complainant testified that while a repair was made to a door it was done incorrectly and damaged the door frame. All other Directive items remained in the same condition as per the Jobsite Inspection.

In addition, Complainant testified that he e-mail Respondent so many times with no answer, and he believed that Respondent has built four other houses since his, and his was not completed and he has paid over and above the contracted price.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, the tribunal issued an order on February 23, 2023 with the Google Meet information and the same was mailed and e-mailed to Respondent at the address of record.

Administrative notice is taken of Respondent’s prior License record on April 10, 2023. Such prior License record reflected that Respondent’s License No. 324291 was first issued on April 22, 2019, and reflected that there was four open complaints, including the present complaint.

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 Vazzano 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.” Binkney K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was no landscaping, the exterior windows were not sealed, the outside kitchen door was not properly sealed, the grout in the master shower was missing or falling out, the lower kitchen cabinets were splitting apart, and the exterior garage door was not sealed. 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(A).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. While the exterior windows and the kitchen cabinets were repaired, albeit late, the remainder of the items were not repaired, or in the case of the door, additional damages occurred. 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. 324291 for a period of twenty 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, April 10, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Casey Daniel Rodman

DBA: Desert Dynamics Construction

1829 Marble Canyon Dr

Bullhead City, AZ 86442

[email redacted]

Bernie Koenig

271-S 3430-E HYW 144

New Harmony, UT 84757

[email redacted]

By: OAH Staff