FINACT2018A-3655-ROC.pdf

2018A-3655-ROC · Registrar of Contractors · 2019-04-23

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

David Robinson Revocable Trust 50 Percent, Case No. 2018-3655 COMPLAINANT, Docket No. 2018A-3655-ROC v. Rojo's Masonry LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 229812, 322184 AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

MODIFICATION AND WRITTEN JUSTIFICATION

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The administrative law judge found that “Complainants have

presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part

of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a

contract between the parties.” See ALJ Dec. at 12:7-10. Specifically, that the contract between the parties

“was lacking the required disclosure regarding filing a complaint with the Registrar.” Id. at 12:12.

CONCLUSION

The Registrar modifies the Administrative Law Judge Decision by:

• On page 13, adding to the Recommended Order: “It is further recommended that within thirty (30)

days off the effective date of the final order, Respondent shall provide acceptable written proof to

the Registrar that Respondent has modified his form contracts to include all of A.R.S. § 32-

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof,

Respondent’s contractor’s license shall be suspended until he does so.”

The Registrar hereby accepts the remainder of the Administrative Law Judge’s Decision, which

becomes effective on May 28, 2019.

Dated April 18, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Copy mailed via USPS First Class mail April 18, 2019 to: Respondent Rojo's Masonry LLC 7186 S Susana Dr Tucson, AZ 85756 Patrick J Lopez Esq. 259 N Meyer Ave Tucson, AZ 85701 Complainant David Robinson Revocable Trust 50 Percent 3497 N Drake Pl Tucson, AZ 85749 Marc C Bockel Esq 135 N Sawtelle Tucson, AZ 85716 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Office of Administrative Hearings Roger A. Geddes, Administrative Law Judge

Case No. 2018-3655 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 3.27.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David W Robinson and Robert W Deegan No. 2018A-3655-ROC III, COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

Rojo's Masonry LLC, License No. ROC 229812, 322184, RESPONDENT

HEARING: January 23, 2019, 1:30 P.M. APPEARANCES: Paul Mittelstadt, Esq., appeared on behalf of Complainant; Patrick Lopez, Esq., appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Rojo's Masonry, LLC (Respondent), is the holder of License Numbers 229812 and 322184 issued by the Registrar of Contractors (Registrar). 2. On or about August 7, 2018, David W Robinson and Robert W Deegan III

(Complainants) filed a Complaint against Respondent with the Registrar alleging poor

work in connection with the construction of a house and guest house by Respondent in

Tucson, Arizona (“project”). The Complaint reflects a contract price of $436,719.00.

3. The Registrar performed an inspection of the project on September 7, 2018. Thereafter, the Registrar issued a Directive, dated September 25, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 12, 2018, as follows: 1. “Project not completed in time frame of the contract.”

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 3.27.2019 ROC LEGAL

Work began 12/7/2017 and at time of jobsite inspection work had not been completed. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 2. “Multiple walls are twisted and out of square, need to be reframed.” The wall in the foyer adjacent to the kitchen appeared out of square, the wall outside of bedrooms 1-4 was out of square at the top corner, the header beam at the kitchen threshold to the dining room was out of square (appeared twisted), and the header beam between the foyer and the dining room was out of square (appeared twisted). Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 3. “Sheetrock on porch installed improperly.”

Sheetrock on the main house front porch ceiling was installed to the edge

of the roofing fascia with no flashing and was cracked and the sheetrock

on the guest house front porch ceiling was installed to the edge of the

roofing fascia with no flashing. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 4. “Tile in front hallway unfinished and not done properly.” Tile work in the front hallway which had not been completed per contract. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 5. “Trim work in house is installed improperly.” Trim work in many areas of the house that was installed poorly with excessive gaps present between many pieces, trim installed around doors out of level and with uneven reveals, and planar offsets at the top profile and side profile of many junctions of trim at joints. Additionally, I observed RECEIVED 3.27.2019 ROC LEGAL

trim installed at closet doors which would prevent closet doors from closing completely. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 6. “Electrical outlets, switches, etc are installed incorrectly.” Many electrical outlet and light switch cover plates which appeared to be out of level. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 7. “Interior of windows are damaged.” Thin set on the bathroom window and gouges on a bedroom window. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108.

8. “Ice block windows in master bathroom installed incorrectly and are

leaking.”

Areas of missing grout from the glass block windows in the master

bathroom. I could not determine at time of jobsite inspection if glass block windows were leaking as complainant declined water test. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 9. “Incorrect electrical switches installed.” A single switch installed in the lavatory while the plans show two switches – one for the light and one for the exhaust fan. I observed a single switch installed for the shower and the plans showed a single switch. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative RECEIVED 3.27.2019 ROC LEGAL

and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. 10. “Interior walls damaged have holes. Not patched or painted.” Areas of mismatched paint and areas of incomplete paint. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 11. “Drywall shelf located in hallway finished incorrectly.” One inside corner of niche was rounded and the other was square. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 12. “Faucet holes drilled in granite countertop are not aligned with sink bathrooms.”

Holes cut in granite countertops for the bathroom faucets were not

centered to the bathroom sinks.

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-

9-108. 13. “Faucet holes drilled in granite countertops are not aligned with sink kitchen.” The hole cut in granite countertops for the kitchen faucet was not centered to the kitchen sink. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 14. “Grout is on top of finished tile, needs to be removed.” Grout haze on tiles in showers. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 15. “Shower tile installed improperly, in all bathrooms.” RECEIVED 3.27.2019 ROC LEGAL

Poorly installed tile in showers at the tile to wall junctions, tile to wall corner junctions, and tile to window junctions. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 16. “Interior door hinges installed incorrectly in 1 bedroom.” The hinges on one bedroom door had been re-mortised, the door re- hung, and existing hinge mortises locations were not finished/stained to match the door finish/stain. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 17. “Garage doors not functioning.” Not completed per contract. Violation of any rule adopted by the Registrar; Namely A.A.C. R4-

9-108.

18. “Exterior doors are installed incorrectly.”

The door threshold/sill plate to the interior garage man door/fire door

flexed and was installed poorly and the exterior garage man door threshold/sill plate was poorly supported with a gap present under the threshold/sill plate. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 19. “Kitchen cabinets installed crooked and poorly and are not completed.” The upper kitchen cabinet above the refrigerator cut out was not aligned to the adjacent oven cabinet, the end panel for the refrigerator cabinet was installed up against an electrical receptacle cover plate, the 45 degree corner cabinets were installed poorly and not lined up with the 45 degree counter angle below them, the cabinet on the west RECEIVED 3.27.2019 ROC LEGAL

wall (butler cabinet/desk cabinet) appeared out of level or square with the wall to its left, the end panel on the refrigerator upper cabinet was not securely fastened, and the upper cabinets to be located on the East wall of kitchen had not been installed. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 20. “Backsplash in kitchen installed incorrectly.” Work for this item had not been completed. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 21. “Rough cut edges/uneven edges countertops in bathrooms & kitchen.” Excessive epoxy on kitchen counter tops which was poorly finished and an unfinished edge on the kitchen counter top to the far right of the

counter top at area entering the living room.

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-

9-108.

22. “Fireplace back tile not finished improperly.” Poorly done transition of tile at the tile to fireplace junction. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 23. “Holes in exterior stucco walls.” A hole in the exterior of the guest house stucco system on the Southwest wall corner, a hole in the exterior of the guest stucco system on the South wall, and an exposed receptacle on the back porch of the main house on the interior West wall of the back porch. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 24. “PVC drain pipe not installed correctly sticking out of sheetrock.” RECEIVED 3.27.2019 ROC LEGAL

Exposed section of plumbing drain pipe in the guest house. Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108. 4. After the Registrar performed a compliance inspection on October 18, 2018, and observed that corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated October 30, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);

d. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the

scope of the license);

e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action

without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for January 23, 2019, at 1:30 P.M. 6. At the hearing, Complainant Robert Deegan testified on his own behalf. Respondent presented the testimony of Pablo Rojo, Qualifying Party, and Jose Lopez. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A - U and Respondent’s exhibit numbers 1 - 18.1 The Tribunal held the record open until March 8, 2018, for Respondent to present video evidence of the project, which was received.

The Tribunal also took administrative notice of documents submitted by Registrar to the Arizona Office of Administrative Hearings. RECEIVED 3.27.2019 ROC LEGAL

7. The Investigator on behalf of the Registrar testified as to inspections and the Directive issued by the Registrar. Specifically, he testified that Arlo Houston was the initial inspector and that he, Steve Lawton, was Mr. Houston’s supervisor but had not been personally involved with the project. 8. Complainant Robert Deegan testified that he found out on August 7, 2018, that Respondent did not have a general contractor’s license. He further testified that Respondent was never barred from the property prior to the Directive deadline, but he told Respondent that it could not do work for which it was not licensed. He stated that on October 10, 2018, he agreed to have Respondent come to the project on October 12, 2018, to do corrective work. He stated he started working with a new contractor who began work on October 10, 2018, but he instructed that contractor not to do Directive work, with the exception of the install of tile baseboards because the walls installed by Respondent were so warped. He further stated that he was not

present on the morning of October 12, 2018, but that another contractor was when

Respondent came to do corrective work and was told to let Respondent do work. He

stated that the start date of contract with Respondent was December 7, 2017, and that

he was not able to move into the home until December 2018. Mr. Deegan acknowledged that Directive items 5, 7 (with the exception of remaining gouges), 10, 14, 16, and 17 were completed by other contractors prior to the Directive deadline. 9. Pablo Rojo testified on behalf of Respondent that he did not receive the Directive when it was mailed out but only became aware of it from Complainant’s lawyer. He then sought out Mr. Houston for additional time to complete Directive but was not able to reach him or get extension. He stated he then assembled subcontractors to appear at project on October 12, 2018, to address the Directive items. He did not dispute that the Directive items existed, but maintained they were more in the nature of punch list items. 10. Mr. Rojo further testified that he had at least 12 workers ready to show up on October 12 to address Directive items including a carpenter, electrician, and drywall RECEIVED 3.27.2019 ROC LEGAL

man and that he believed he could complete the items in 5 - 6 days. He stated he arrived at 8:00 A.M. and saw contractors at the project and that he went into the house and saw demolition being done. He further stated he saw contractors doing work on Directive items, but only identified removal of baseboards and doors as being Directive items. He stated he spoke with only one person at the project on October 12 who was working on baseboards who said they had started on the baseboards the day before and that another contractor there had started two days before. Mr. Rojo admitted that no one told him that he could not do any work that day. 11. With regard to the scope of its license, Mr. Rojo testified that he did not dispute that he did not have a general contractor’s license but testified that he did receive one on or about September 30, 2018, in time to correct the Directive items. He further did not dispute that all statutorily required elements of a contract with Complainant were not present. (Complainants’ Exhibit E).

12. Jose Lopez, a framing subcontractor for Respondent, testified on behalf

of Respondent that he was contacted by Mr. Rojas to be at the project on October 12,

2018, to do framing work but that Mr. Rojas told him not to be there because another

contractor was doing the work.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32- 1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2- 19-119. 3. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the RECEIVED 3.27.2019 ROC LEGAL

statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the registrar. …

12. Failure in any material respect to comply with this chapter. … 16. Knowingly contracting beyond the scope of the license or licenses of the licensee. …

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The RECEIVED 3.27.2019 ROC LEGAL

written directive shall set forth the time within which the contractor is to complete the remedial action.….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative….

7. A.R.S. § 32-1154(A)(2). Complainants have presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or specifications or of any building codes. Respondent did not dispute the existence of Directive item number 9 and that it had not been corrected and Respondent presented no legal excuse to depart from or disregard plans or specifications or building codes in that regard.

RECEIVED 3.27.2019 ROC LEGAL

8. A.R.S. § 32-1154(A)(3). Complainants have presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of Directive Items numbers 1, 2, 3, 4, 6, 7 (with the regard to remaining gouges), 8, 11, 12, 13, 15, 18, 19, 20, 21, 22, 23, and 24, and that they had not been corrected. 9. A.R.S. § 32-1154(A)(12). Complainants have presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract between the parties. Respondent did not dispute that the unsigned contract between the parties, in an amount in excess of $1,000.00, was lacking the required disclosure regarding filing a complaint with the Registrar. 10. A.R.S. § 32-1154(A)(16). Complainants have presented sufficient

evidence to demonstrate a violation of A.R.S. § 32-1154(A)(16) for knowingly

contracting beyond the scope of its license. Respondent did not dispute that it initially

did not have the proper license to do the work it contracted to do for Complainant and

Respondent presented no evidence that it did not know it did not have the proper license. 11. A.R.S. § 32-1154(A)(22). Complainants have also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. While it is clear that Complainant Robert Deegan did not want Respondent to do the corrective work, the evidence presented established that Complainant recognized that he was required to allow Respondent to do corrective work if Complainants wanted to proceed with their Complaint. Further, there was insufficient evidence presented to establish that Respondent was prevented from doing any corrective work or was not granted access to the project. Despite another contractor being present on October 12, 2018, that was at most addressing a few of the Directive items, Respondent made no effort to do any RECEIVED 3.27.2019 ROC LEGAL

work whatsoever or to correct any Directive items that were not being addressed by that other contractor that day. Further, there was no evidence that that other contractor or anyone else told Respondent that it could not do any work that day. There was no direct evidence that the mere presence of another contractor interfered with work Respondent could have undertaken on other Directive items. Respondent was seemingly more concerned with videoing the project rather than even making an attempt at doing any work. 12. Accordingly Complainants have established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2) (Directive item number 9), A.R.S. § 32-1154(A)(3) (Directive item numbers 1, 2, 3, 4, 6, 7 (with the regard to remaining gouges), 8, 11, 12, 13, 15, 18, 19, 20, 21, 22, 23, and 24), A.R.S. § 32- 1154(A)(12), A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this

Order, Respondent’s License Numbers 229812 and 322184 are suspended for three

days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order. 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)(5), unless Respondent tenders payment of the outstanding prior civil penalty. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. RECEIVED 3.27.2019 ROC LEGAL

Done this day, March 26, 2019. /s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors