ALJDEC decisions subject to certification as final

2019A-03407-CHC-ROC · Registrar of Contractors · 2019-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2019 APPEARANCES: Complainant Elva Bernal appeared on her own behalf. Respondent Pedro Alejandro Sanchez doing business as Xtreme Painting appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Redro Alejandro Sanchez (Respondent) is the holder of License No. 280821 issued by the Arizona Registrar of Contractors (Registrar). On or about April 26, 2019, Elva Bernal (Complainant) entered into a contract with Respondent for interior paining and the installation of tile inside and outside. On or about July 2, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project. The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). 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. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 08/19/2019.

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

You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: Tile not completed from exterior Investigator’s Observation: Xtreme Painting contract dated 04/26/2019 for Elba Bernal Rodolfo is to paint house and install tile inside and outside of residence. The contract is for $16,576.00 and it is signed by respondent. Complainant paid respondent most of the contract amount. Respondent confirmed the information on the contract is what was contracted and agreed upon. During inspection, no tile work was done outside residence at all. Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Perez was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). Investigator Perez testified that Respondent’s license allowed him to perform the painting portion of the contract, but that the tile flooring installation portion of the contract was beyond the scope of his license. Complainant testified that she went to Mexico and bought the tile there that Respondent had told her to purchase to complete the project. Complainant indicated she paid more than $5000.00 for the tile and more than $1500.00 in related materials and expenses. Respondent testified that Complainant purchased tile that was not appropriate for the outdoor installation because it was not the proper thickness. Respondent denied telling Complainant what product to purchase. Respondent asserted that, had Complainant purchased the materials in the United States, she would have been able to return the improper product but because she purchased the materials in Mexico, it could not be returned. Administrative notice is taken of Respondent’s prior License record on November 19, 2019. Such prior License record reflects that Respondent’s License No. 280821 was first issued on September 10, 2012, and is current. Such prior License record also reflects that there were no other open complaints and one prior complaint against Respondent’s license that was resolved or settled. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 4. The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 280821 for a period of one day. 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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 will be 40 days from the date of that certification. Done this day, November 19, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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