FINACT2019A-04162-CHC-ROC.pdf

2019A-04162-CHC-ROC · Registrar of Contractors · 2020-02-10

I REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA J

Thomas Michael Green, CaseNo. 2019-04162 COMPLAINANT, Docket No. 20 19 A-041 62-CHC-ROC

Orona's Construction LLC, FINAL ADMINISTRATI!'E License No. PiOC 240264, DECISIONAND ORDER RESPONDENT. l0 ll t2 Under A.R.S. $ 41-1092.08(8), 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 ofeach finding of fact or conclusion of law. REGISTRAR'S ACCEPTANCE t7 In this case, a hearing was held, and the administrative law judge issued a written decision. see Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge's decision, that

decision is the final administrative decision in this case and becomes effective on March 16, 2020. IT IS FURTI{ER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar's physical address or mailed to:

Registrar of Contractors I of2 RECISTRAR OF CONTRACTORS 1700 W. washington St. Ste. 105 - Phoenix, AZ 85007-2812 Tele phone (602 )5 42 - I 525 Toll F rce (811)692-97 62 Lglll3/19 P.O. Box 6748 Phoenix, Arizona 85505-6748 Dated February 5,2020.

By: ls/ Joseph Citelli -@ouncil Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail February 5,2020,to'.

Respondent

Orona's Construction LLC 524 S Cameo Pl # A l0 Yuma, AZ 85364

ll Complainant

t2 Thomas Michael Green P O Box 25715 l3 Yuma,4285361

t4 Copy sent electronically this same date to

l5 Office of Administrative Hearings l6 Antara Rivera. Administrative Lau Judge

t7 Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar t8

Case No. 2019-04162

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2of2 REGISTR-{R OF CONTRACTORS 1700 W. Washington St. Ste. 105 - Phoenix, AZ 85001-2812 Telephone (602)542-l 525 T oll F rce (877)692-97 62 1.16 2020 ROC LEGAL

,| IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Michael Green, No. 201 9A-041 62-CHC-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION Orona's Construction LLC, ROC License: ROC 240264, RESPONDENT

E J-N_9.: December 27,2019 I APPEARANCES: Thomas Michael Green, Complainant, appeared on his own behalf. Frank Orona appeared on behalf of Orona's Construction, LLC, Respondent. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera

FINDINGS OF FACT 1 . On January 23, 2008, the Registrar of Contractors (ROC) issued License No. 240264 for Specialty Dual CR-61 Carpentry, Remodeling, and Repairs to Orona's '15 Construction, LLC (Respondent). Respondent's address of record for the license is 524 South Cameo Place, #A, Yuma, AZ 85364. Frank Gerardo Orona is listed on the license as Member, Qualifying Party.l 2. Administrative Notice is taken of Respondent's prior License record, for License No. 240264, as reflected on the ROC's public website on December 27, 2019. Such prior License record reflects that Respondent's license is currently active. The license has never been disciplined by the ROC. The record also reflects that there is one open complaint against Respondent's license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through R L I lnsurance

Company effective May 20,2011.2 3. On or about July 15, 2019, Thomas Michael Green (Complainant) entered

into a written contract with Respondent to perform stucco repair on three exterior walls and patchwork at Complainant's home located at 14620 East 52nd Street, Yuma, AZ

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85367 for the amount of $3,300.00. The project started on or about July'15, 2019.

Complainant paid Respondent $3,300.00, by the time the project ended on July 27,2019.

4. On or about August 16,2019, the ROC received a Complaint against Respondent from Complainant alleging poor workmanship. Complaint indicated a number of items that were poorly done by Respondent, including but not limited to, improper blending and uneven surfaces.

5. ROC lnvestigator Ruben Perez (lnvestigator Perez) was subsequently assigned to the case. I I 6. On or about August 23,20'19, the ROC issued a Jobsite lnspection Notification letter to the parties, provided proper notice to them, and advised that an onsite review would be conducted at the project site by an ROC investigator on September 16, 2019, at 10:00 a.m.

't3 7. On or about September 16, 2019, ROC lnvestigator Perez reviewed the work completed by Respondent, to date, and took about 20 photographs. Respondent was not present during the inspection. 't5 B. On or about September 23,2019, lnvestigator Perez issued a Directive From The Registrar (Directive) to Respondent because he substantiated Complainant's allegation that Respondent's work failed to meet minimum ROC workmanship standards. '18 Specifically, Respondent was ordered to remediate complaint item 2, "[s]tucco crack repair not blended with Existing Finish" via appropriate means. Respondent was put on notice that he had until October 10, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to Arizona Administrative Code (A.A.C.) R4- 9-108, and Arizona Revised Statute (A.R.S.) SS 32-1 154(A)(22) and 32-1 154(E). 9. On or about September 25, 2019, Respondent called lnvestigator Perez and informed him that Complainant never complained of poor workmanship and that a third party painted over Respondent's stucco repair. '10. On or about October 23, 2019, lnvestigator Perez conducted a Compliance Jobsite lnspection. At that inspection, lnvestigator Perez observed minor repairs but not enough to be in compliance with the Directive. Respondent was present at the Compliance Jobsite lnspection and alleged denial of access. 1.16.2020 ROC LEGAL

11. On October 23,2019, the ROC issued a Citation to Respondent for alleged violations of A.R.S. SS 32-1 1 54(AX3),32-1154(A)(12), 32-1 1 58, and 32-1 1 54(A)(22), and

A.A.C. R4-9-108. Respondent was given until November B, 2019, to respond with its Answer or face discipline pursuant to A.R.S. SS 32-1 154(AX22) and 32-1155.

12. On or about November 3, 2019, Respondent filed an answer to the Citation. Respondent stated that it should not be revoked or suspended because it completed the stucco work per the contract. Respondent performed the work in a professional manner per industry standards and per standards of stucco work. Complainant stated that Respondent did a great job and never complained of any poor workmanship. Respondent I argued that "not blended stucco finish" was not a violation of R4-9-108 because it followed all specifications with respect to stucco installation and repair. 13. On November 4,2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing at 1:30 p.m. on December 27,2019. HEARING EVIDENCE 1. At the hearing, lnvestigator Perez testified that, during the Compliance Jobsite lnspection, there were visible and uneven cracks in the stucco repair that did not blend in with the walls and were "sticking out." lnvestigator Perez opined that Respondent '18 was not compliant with the Directive. 2. Complainant testified on his own behalf and introduced two exhibits. Complainant stated that he contracted with Respondent to repair cracks in the stucco. Respondent was to do three full exterior walls and patchwork. Complainant noticed t, certain areas that did not match. Complainant told Respondent, on a daily basis, that some of the areas did not match. Respondent explained that the walls would eventually blend. 3. On or about July 23, 20'19, Respondent finished the project. Complainant hired a painter to paint over the repaired stucco. Once the painter began painting, the lack of uniformity was considerably noticeable. lnstead of blending, as Respondent stated 2a it would, the repairs were blatantly mismatched and uneven in texture. Complainant immediately told his painter to stop painting. 1.16.2020 ROC LEGAL

4. After July 23, 2019, Complainant contacted Respondent to fix the mismatched stucco. Respondent agreed to repair the mismatched stucco and made minor repairs. Respondent also suggested that the whole wall needed to be redone. Respondent told Complainant that it would cost Complainant another $3,500.00 to redo all of the walls.

5. Complainant got a second opinion from another contractor, Steven lVlitchel, who suggested that all of the walls needed to be redone completely. Complainant presented a notarized letter from Mr. Mitchel. ln the letter, Mr. Mitchel opined that Respondent's stucco work was so poorly done that it compromised the value of I Complainant's home.3 6. Complainant testified that he attempted to contact Respondent. Respondent stopped answering his phone. Complainant filed the Complainant soon thereafter. Respondent had open access to Complainant's home. The only time Complainant heard from Respondent was on October 12,2019 when Complainant's wife found Respondent's business card wedged in his front door. 7. Complainant argued that he never received any phone calls from Respondent regarding corrective work after the Directive was issued. Complainant's intent was to have Respondent fix its mistakes and make the house look nice again. B. Frank Orona, owner of Respondent, testified on behalf of Respondent. Mr. Orona testified that Complainant's home had many cracks in the stucco. He repaired all of the cracks per the contract. Complainant never complained about Respondent's work while on the job or after the project was completed. Respondent even fixed additional cracks at no charge. 9. Mr. Orona argued that Complainant was okay with the condition of the cracks before Complainant's painter began painting. Mr. Orona opined that once Complainant's painter painted over the cracks, there was nothing he could do except redo the walls. Mr. Orona offered to redo the walls for $3,000.00. Complainant wanted it done for $2,500.00. They never agreed on a price. 2A

See Complainanfs Exhibit #1 4 I .16.2020 ROC LEGAL

10. After Mr. Orona received the Complaint, he went to Complainant's house and left a business card at the house. Mr. Orona never heard from Complainant. Mr. Orona did not know of the Jobsite lnspection but knew about the Compliance Jobsite lnspection. Mr. Orona testified that he tried to mntact Complainant before the Compliance Jobsite lnspection but Complainant never responded.

11. Ivl r. Orona referred to his November 3, 2019, statement to the ROC.4 He argued that he should not be revoked or suspended because Complainant never complained to Respondent of poor work. Additionally, Mr. Orona stated that had Complainant told Respondent he was unhappy, Respondent would have refunded Complainant's money. CONCLUSIONS OF LAW . The ROC has jurisdiction over this matter pursuant to A.R.S. $ 32-1 101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to A.R.S. $ 41-1092 ef seg. 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor's license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.5 3. The purpose of the ROC's licensing statutes is to protect the public from unscrupulous, unqualifi ed, and fi nancially irresponsible contractors.6 4. Complainant bears the burden of proof to establish Respondent's statutory violations by a preponderance of the evidence. See A.R.S. S 41-1092.07(GX2); A.A.C. R2- 19-1 19(A) and A.A.C. R2-19-119(BX1); see a/so Vazanno v. Superior Court,74 Ariz.369,

372, 249 P.2d 837 (1 952). "A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." fuloRRls K. UDALL, ARrzoNA LAW oF EVTDENCE S 5 (1960).

a See Respondent's Exhibit #1 . 2A s See Anrz. REV. STAT. S 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437 , 441, 803 P.2d 430, 434 (App. 1990). 6 See Aeslhetic P roperty ltlaintenance v. Capital lndem. Corp., 183 Atiz. 7 4,900 P. 2d 1210 (1995).

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5. A.R.S. S 32-1154(AX3) 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."

6. 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."

7. A.R.S. S 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor's license, "[flailure in any material respect to comply with this chapter." I 8. A.R.S. S 32-1158 holds, in pertinent part, that "[a]ny 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 in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal descrrption. 3. The date the parties entered into the contract. '16 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. B. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract."

9. A.R.S. S 32-1154(A)(22) holds, in pertinent part, that "[a] holder of a license

may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set 2A forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of

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the directive. A license shall not be revoked or suspended nor shall any other penalty be

imposed for a violation of this paragraph until after a hearing has been held. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award."

10. A.R.S. S 32-1 154(E) holds, in pertinent parts, that the Registrar may "[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. lt also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered." 11. There is no evidence that Respondent violated A.R.S. S 32-1154( \(12). lnvestigator Perez did not knowwhich applicable elements were violated by Respondent. Furthermore, neither Complainant nor Respondent addressed this issue at the hearing.

'15 12. The evidence established that Respondent's work was not in conformity with the ROC's standards. Complainant presented evidence that Respondent's work resulted in uneven and mismatched stucco repair work. Respondent's workmanship was evident, in the appearance of the house, after Complainant's painter began to paint the repaired stucco. Thus, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. S 32-1 154(AX3), namely A.A.C R4- 9-108. 13. Furthermore, Complainant established that Respondent did not perform any corrective work after the Directive was issued because he did not have any contact with Respondent. Both parties argued that each attempted to contact the other. However, there is evidence that Respondent did not perform the required corrective work per the Directive. Moreover, after the Compliance Jobsite lnspection, lnvestigator Perez found that Respondent failed to rectify the mismatched stucco. 14. Respondent alleged denial of access at the Compliance Jobsite lnspection. 2a Complainant established that Respondent had full access to his house and that Respondent was aware ofthe issues that needed to be corrected per the Directive. 1.16.2020 ROC LEGAL

15. While denial of access constitutes a valid justification for failing to comply with a written directive of the ROC, in this case, Respondent failed to establish, by a preponderance of the evidence, that Complainant denied it access to the property to allow Respondent to complete the required repairs. Respondent acknowledged that he left a business card at Complainant's home and waited for Complainant to respond. Respondent had access to Complainant's property to be able to place the business card. Thus, Respondent's failure to comply with the Directive was in violation of A.R.S. $ 32- 1154(A\(22). REGOMMENDED ORDER Based on the foregoing, '10

lT lS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent's License No. 240264 for a period of one (1 ) day. lT lS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. S 32-1 154(E). lT lS 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 '16 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 '18 Respondent, as defined in A.R.S. S 32-1 101 (AX7), unless Respondent tenders payment of any outstanding prior civil penalty. ln 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 January 15,2020.

/s/ Antara Nath Rivera Administrative Law Judge Transmitted electronically to: 2A Jeffrey Fleetham, Director Registrar of Contractors

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