ALJDEC decisions subject to certification as final

07F-S0251-ROC · Registrar of Contractors · 2009-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 9th, 2009; 9:00 a.m. APPEARANCES: Complainant, Mr. Barry Famous, represented himself. Respondent, Sonoran Signature Homes, Inc., was represented by Mr. Michael McLean, President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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. Respondent Sonoran Signature Homes, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 165980. 2. Respondent completed construction on a single family residence in Sierra Vista, Arizona, in 2004, and the home was sold to persons not a party to this case. 3. Complainant Mr. Barry Famous purchased that home in 2006, and took possession thereof in October of that year. Just prior to his purchase of the home the previous owners had requested Respondent to make some repairs to an area of the exterior stucco wall where the master bedroom meets the garage. 4. Respondent came and performed the repair work in September of 2006, just prior to Complainant taking possession. When Complainant moved into the home the repair work had not been sanded and painted. 5. In late 2006, Respondent painted over the repaired are, but did not first sand the rough areas to make the texture match as closely as possible. There was an obvious mismatch in texture and color between the original and repaired areas. 6. Complainant filed the instant Complaint on June 10th, 2007, seeking an Order directing Respondent to properly complete the repair job to the stucco wall. 7. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves, who conducted a job site inspection, and as a result issued a written Corrective Work Order to Respondent dated July 6th, 2007. The Order directed the Respondent to properly make necessary repairs to the stucco wall. The CWO allowed 15 calendar days which was a reasonable amount of time. 8. Inspector Nieves credibly testified at the administrative hearing of this matter that when he viewed the area in question on February 6th, 2009, during his re-hearing inspection, there remained a visible seam line at the repaired area that must be corrected. 9. Following the issuance of the CWO, Complainant filed two addenda to the Complaint on January 8th, 2008, complaining that a large section of the lot’s perimeter block wall had been blown down during a recent storm. He complained that the wall had been defectively and unprofessionally constructed by Respondent, and sought an Order directing that it be repaired. 10. Inspector Nieves investigated and issued a letter (styled by him as a “Corrective Work Order,” but not actually a CWO) to the parties dated February 6th, 2008. The letter informs the parties that the Complaint as to the block was barred by the applicable statute of limitations as the house had been completed in 2004, and the addenda filed more than two years subsequent to the wall’s being blown down. Therefore, the Inspector required no action by the Respondent be taken. 11. The other evidence of record supports the finding by the Inspector that the home was in fact completed in 2004, and Certificate of Occupancy issued at that time, and the house was inhabited since completion. 12. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. 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. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, 23, and 3. 3. The faulty stucco area and subsequent inadequate repair effort violate A.A.C. R4-9-108, Workmanship Standards, and therefore violate A.R.S. 32-1145.A.3. The failure to properly repair also violates A.R.S. 32-1154.A.23, by failing to obey the Corrective Work Order without valid justification within a reasonable amount of time. 4. A.R.S. 32-1155.A. establishes a two-year statute of limitation on the filing of Complaints such as this one, for acts of defective construction. The Complaint of the block wall falling over was filed more than two years after the wall was constructed, and therefore is time-barred by the statute. 5. The record evidence contains no proof of any facts supporting a conclusion that Respondent violated A.R.S. 32-1154.A.2. Nor is there any evidence of any wrongful or fraudulent action on Respondent’s part independent of the improper stucco job and repair, in violation of A.R.S. 32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B License number 165980 be suspended until the Registrar receives written proof that Respondent has properly completed the repair job to the exterior stucco wall. It is further recommended that in the event the Respondent properly accomplishes the above-mentioned corrective work on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint S07-0251 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, February 18th, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell, Director 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com