ALJDEC decisions subject to certification as final

2021A-05851-CHC-ROC · Registrar of Contractors · 2022-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ed Hudson,

COMPLAINANT,

v.

Ed Fuller Construction, LLC,

License No. ROC 324859,

RESPONDENT.

No. 2021A-05851-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 2, 2022

APPEARANCES: Complainant Ed Hudson appeared on behalf of himself.

No one appeared on behalf of Respondent Ed Fuller Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On February 19, 2021, Complainant Ed Hudson and Respondent Ed Fuller Construction, LLC (Fuller Construction) entered into a home remodeling contract for the amount of $61,162.

2. Fuller Construction did not provide Mr. Hudson with a written contract that advised Mr. Hudson of his right to file a complaint with the Arizona Registrar of Contractors (ROC) against Fuller Construction for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A).

3. On April 1, 2021, Fuller Construction began work.

4. On September 23, 2021, Fuller Construction stopped work.

5. On or about November 29, 2021, Mr. Hudson filed a complaint with the (ROC) alleging poor work on the part of Fuller Construction.

6. On January 12, 2022, ROC Investigator Manny Bermudez conducted a job-site inspection. Investigator Bermudez substantiated all of the items listed in

Mr. Hudson’s complaint.

7. On January 21, 2022, the ROC issued a Written Directive to Fuller Construction. The Written Directive provided, in relevant part, 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 February 14, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the

suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Flooring not level. Foundation slopes and individual tiles uneven.;

Investigator’s Observation: Verified: At time of inspection I observed multiple areas of uneven floors including tile lippage.

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: 2 - Black windows requested. White windows purchased and poorly painted.

Investigator’s Observation: Verified: At time of inspection I observed what appeared to be white framed windows and sliding door that was poorly painted black.

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: 3 - Mini splits not installed per contract.

Investigator’s Observation: Verified: At time of inspection I observed a mini split A/C unit was installed in the family room and the mini split for the office was not installed, but laying on the floor.

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: 4 - Drywall cracking several months after installation. Poor quality drywall texture.

Investigator’s Observation: Verified: At time of inspection I observed multiple areas of poorly finished drywall throughout the new addition.

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: 5 - Cupping in roofing system. Pooling of water;

Investigator’s Observation: Verified. Areas of cupping (fishmouths) and/or roof ply separation observed. Area of cracked and/or torn ply sheet coated with sealant observed. Area of ponding exceeding 1/3 roof span observed.

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: 6 - Electric not complete. Not all receptacles working. PVC conduit exposed on roof already discolored.

Investigator’s Observation: Verified: At time of inspection I observed the pocket light nearest the family room not functioning.

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: 7 - Double doors to storage installation not complete.

Investigator’s Observation: Verified: At time of inspection I observed that the carport storage doors did not open and close properly.

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: 8 - Exterior not completed.;

Investigator’s Observation: Verified: At time of inspection I observed that the exterior walls of the addition had not been finished.

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 - Wall not straight. One side of room is three inches longer than the other side of the room.

Investigator’s Observation: Verified: at time of inspection I observed the East wall of the family room to be approximately 7/8" out of level.

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.

8. Fuller Construction did not correct the Directive items by the due date.

9. On February 22, 2022, the ROC issued a Citation against Fuller Construction’s license. Through the Citation, the ROC alleged that Fuller Construction may have violated Arizona Administrative Code (A.A.C.) Rule 4-9-108(a) and A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12) and (22); and A.R.S. § 32-1158.

10. Fuller Construction filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

12. A hearing was held on May 2, 2022.

13. At hearing, Mr. Hudson explained that Fuller Construction performed poor work in connection with the home remodeling project.

14. Investigator Bermudez testified regarding the investigation of the complaint and the issuance of the Directive.

15. No one appeared on behalf of Fuller Construction at the hearing on May 2, 2022. No one filed a request to appear telephonically on behalf of Fuller Construction. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Fuller Construction through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Fuller Construction did not present any evidence to defend its license.

16. Administrative notice is taken of Fuller Construction’s prior license record on May 10, 2022. Such prior License record reflects that license No. 324859 was first issued to Fuller Construction on June 21, 2019, and is active. Such prior license record also reflects that there are two open complaints against Fuller Construction’s license. Such prior license record shows that one complaint has resulted in discipline against Fuller Construction’s license.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of

fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

4. The preponderance of the evidence shows that Respondent did not perform the home remodeling project in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1158.

6. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s Directive without valid justification, which is a 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 License No. ROC 324859 held by Ed Fuller Construction, LLC, for three 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.

Done this day, May 10, 2022.

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 is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary