ALJDEC decisions subject to certification as final

08F-T0419-ROC · Registrar of Contractors · 2008-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20th, 2008; 1:30 p.m. APPEARANCES: Complainant, Ms. Karen Oscar, represented herself. Respondent, Casas Bonitas Custom Homes, LLC, was represented by Mr. Alex Ross, 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 Casas Bonitas Custom Homes, LLC, was a contractor licensed by and doing business in the State of Arizona during the contractual relationship with this Complainant which is the subject of this Complaint. However, the subject license, Class B number 161450, is now suspended for lack of bond, and this Respondent is no longer in business. 2. Complainant, Ms. Karen Oscar, purchased a new home in Tucson, Arizona, in 2004. The home was constructed by Respondent. Construction was substantially completed in late 2006, and Respondent last performed work on the home in early 2007. 3. Complainant filed the instant Complaint against the Respondent on October 4th, 2007, complaining of three workmanship items: “bubbling toilets”; “unusable driveway”, and “cracks wider than 1/16 inch where yard walls meet house.” According to Complainant, the driveway is too steep, and causes damage to the vehicles when they travel over it. 4. The Complaint was assigned to Registrar of Contractors Inspector Richard C. Allen, who conducted a job site inspection on November 16th, 2007, in the presence of Complainant and Respondent’s President Mr. Alex Ross. Inspector Allen conducted tests of the toilets, witnessed vehicular traffic over the driveway, and inspected it visually, and inspected the stucco cracks, and listened to both parties regarding the stucco work. 5. As a result of his inspection Inspector Allen sent a letter to the parties on November 21st, 2007, informing them that his inspection of the toilets found that the minor noise heard during flushing was acceptable and did not warrant any corrective action; that the slope of the driveway was acceptable, and that the only stucco cracks wider than 1/16” were at areas of stucco applied by a contractor other than the Respondent and one hired by the Complainant. Thus Inspector Allen ordered no corrective work to be performed by the Respondent. 6. Complainant requested an administrative hearing which was held as indicated above. Complainant, Mr. Alex Ross, and Inspector Allen testified at the hearing. 7. Inspector Allen had conducted a pre-hearing inspection of the job site the morning of the hearing. Again he witnessed vehicular traffic over the driveway which confirmed his original opinion that the driveway construction was acceptable. He again witnessed no visible scrape marks over the driveway. He did not see any but minor stucco cracking and spawling, and could not confirm any corrective work needed to be performed by this Respondent. Nor did the Inspector testify that any toilets needed to be corrected. 8. Mr. Ross testified that he had had a plumber inspect the toilets and that they were functioning properly according to the plumber. The Complainant’s home is on a hilly street, and Respondent even went to the city to and obtained permission to use an extra 2’ of space for the driveway in consideration of that condition. Respondent used every bit of length he could possibly use for the driveway, and according to Mr. Ross, and according to the Inspector, vehicles can safely use the driveway. Mr. Ross also testified that Complainant had hired another contractor to build her walls higher, and that the other contractor is responsible for the cracks. 9. Complainant testified that the driveway is bad, and that she never knew of any plumber being in her home to inspect the toilets. She said the wall cracks are at a place where the Respondent’s subcontractor built the wall. 10. Complainant introduced documentary evidence in the form of bills from car repair shops she claims were made necessary by damage caused by the improperly sloped driveway, and her written statement of damages. These bills and her statement include engine mount bolt replacement, new tires, a new brake job, etc., for items that in no conceivable way could have been caused by the driveway. Other invoices are for repair to the bumper, but the invoice indicates it was paid by the insurance company. Complainant seeks restitution in an amount exceeding $14,000.00. 11. There is insufficient evidence to conclude that the workmanship of the Respondent in this case was defective. The greater weight of evidence supports the conclusions reached by Inspector Allen. 12. However, the agency record contains letters to Inspector Allen written on Respondent’s letterhead which do not include the subject license number preceded by “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, 3 (namely A.A.C. R4-9- 108, Workmanship Standards), and 13, (namely A.R.S. 32-1124.B). 3. There is insufficient evidence to conclude that Respondent violated A.R.S. 32-1154.A.2 by any departure from plans, specifications or applicable codes; 7, by any wrongful or fraudulent act; or 3, violations of professional workmanship standards in the facts of this case. 4. Respondent did violate A.R.S. 32-1154.A.13 by failing to include the subject license number preceded by “ROC” on the letter to Inspector Allen. That statute requires this information to be included on all Respondent’s advertising, letterheads, contracts ad other documents used in connection with the licensed contracting business. Respondent violated A.R.S. 32-1124.B. The subject license is already suspended, and Respondent is no longer operating as a contractor, however, Respondent should be admonished that in any future endeavors as a licensed contractor this information must be included where appropriate per statute. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T08-0419, together with the Complaint on which hit is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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, October 27th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

-----------------------

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