ALJDEC

02F-T0242-ROC-COM · Registrar of Contractors · 2002-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, April 5th, 2002; 9:00 a.m. APPEARANCES: The complainants, Oscar and Michelle Ramirez, appeared and represented themselves. The respondent, Trace London Fuller, doing business as Casa Tierra Construction Co., failed to appear or be represented. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard and other evidence admitted to the record, and based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Trace London Fuller, was a properly licensed contractor in and by the State of Arizona at the time he built and sold the respondents, Oscar and Michelle Ramirez, a married couple, their residence in Rio Rico, Arizona. Respondent at that time held Class B- License number 099776. 2. The complainants took possession of their new home, constructed by respondent, on August 17th, 2001, with respondent having finally completed its construction on or about August 13th, 2001. 3. Complainants immediately noticed many defects in the construction, and items not completed by the respondent. Complainants notified respondent who pointed the finger at the subcontractors. When complainants notified the subcontractors they pointed the finger at respondent. 4. Complainants filed the instant administrative complaint against respondent with the Arizona Registrar of Contractors on September 5th, 2001. 5. The complaint was assigned to Registrar of Contractors Inspector James R. Morris. Inspector Morris conducted a first job-site inspection on October 9th, 2001. Mr. and Ms. Ramirez and Mr. Fuller were present. As a result of his inspection, Inspector Morris issued a Corrective Work Order to the respondent dated October 11th, 2001. That CWO directed the respondent to make several corrections to defective workmanship of the house within 15 days, which was a reasonable amount of time. 6. Complainants then added a second list of items to their complaint, and the inspector returned for a second job-site inspection, which was conducted on November 2nd, 2001. Again all parties were present. The complainants added more items to their complaint at the job-site. The inspector issued a second CWO to the respondent dated November 7th, 2001. That CWO also directed the respondent to make several corrections to his defective work on the complainants' home. The inspector allotted days from the date of that CWO for the corrections to be made, which was, again, a reasonable amount of time to do so. 7. One item not included in the second CWO, but which respondent should have also corrected, was a defect in the masonry at the area under the breaker box. This defect was called to the respondent’s attention at the second job-site inspection, and he was told by the inspector it needed correction. The item was not included in the CWO, according to Inspector Morris, because the respondent stated at the job-site that it would be corrected. It never was. 8. As a matter of fact none of the items contained in the first CWO were corrected, and one item on the second CWO was not corrected by the respondent during the prescribed time frame. Moreover, as found by the inspector’s testimony at the hearing, these items still were not corrected by the time of his pre-hearing inspection on April 3rd, 2002. 9. Respondent was to have corrected, but failed to correct in the October 11th, 2001 CWO: out-of-plumb door jamb; a crack in the concrete at the front entry door threshold; carpentry defects at front porch lid at lap joint; carpentry defects at rear porch lid at lap joint; sheet rock at the area of the sliding glass door; sliding glass door screen door latch, and reimbursement of $48.00 to complainants for their cost to have a door adjusted. 10. One item addressed in the first CWO was the controversy over the size of the garage. Respondent advertised the house as having a two-car garage. This was part of the offer which induced the complainants to buy. Inspector Morris could only compare the actual size of the garage to the plans and specifications for the house. He found the size of the garage fulfilled the plans and specifications, and so noted in the CWO. Complainants contend that it is too small to be a two-car garage. However, they concede that two small cars could fit in the garage, and there is no objective record evidence of which size cars should be able to fit into the garage before it is entitled to be called a two-car garage. 11. Respondent was to have corrected, but failed to correct in the November 7th, 2001 CWO only the defect in the air conditioning condensation line on the roof. The line was left lying unsecured on the roof, and is not painted to protect against the sun’s rays. 12. A Citation and complaint was issued in this case from the Registrar of Contractors on December 13th, 2001, citing respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 13. Respondent failed to file any written answer to the citation and complaint. Accordingly, the Registrar of Contractors issued a default decision and order against respondent’s license on January 11th, 2002, concluding that the respondent had violated A.R.S. §32-1154.A.7., 23., and 3. as set forth in the citation and complaint. The registrar ordered respondent’s license suspended on the effective date of the order, February 20th, 2002, but further ordered if the respondent properly corrected the specified items, then no suspension would take place and this citation and complaint would be closed. 14. Prior to the effective date of the order the registrar issued a Notice of Compliance Hearing on February 5th, 2002, noticing a compliance hearing to be held in the OAH on April 5th, 2002. The purpose of the hearing was to determine whether respondent has substantially complied with the terms and conditions of the prior decision and order. 15. Based on the entire record evidence, it is found that the respondent has almost completely failed to comply with the terms of the prior decision and order. 16. Notice is taken of the respondent’s prior license record with the Arizona Registrar of Contractors, which includes a prior suspension of the subject license on January 18th, 2001, for lack of bond, and a suspension again on January 17th, 2002, for non-compliance with the CWOs in this case. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092. 2. The respondent herein was charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.7., 23., and .3., namely A.A.C. R4-9-108, Workmanship Standards. A default decision and order concluding that respondent had violated those sections was entered by the registrar as found above. 3. This compliance hearing was purposed to determine whether respondent had substantially complied with the terms and conditions of the prior decision and order, and to consider the appropriateness of the penalty that was imposed or may be imposed as a result of this hearing. 4. Based on the record taken as a whole, and the findings that respondent has failed to substantially comply with the registrar’s CWOs and decision and order, and based on respondent’s prior license record and current license status, it is concluded that revocation of Class B License number 099776, is now in order. . . .

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Class B License number 099776 be revoked on the effective date of this order (40 days after the date of service appearing on the registrar’s certification on the order). Done this day, April 19th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of April, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488