ALJDEC decisions subject to certification as final

2019A-04162-CHC-ROC · Registrar of Contractors · 2020-01-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Michael Green,

COMPLAINANT

Orona's Construction LLC,

ROC License: ROC 240264,

RESPONDENT

No. 2019A-04162-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 27, 2019

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

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 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.

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 Insurance Company effective May 20, 2011.

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 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.

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.

ROC Investigator Ruben Perez (Investigator Perez) was subsequently assigned to the case.

On or about August 23, 2019, the ROC issued a Jobsite Inspection 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.

On or about September 16, 2019, ROC Investigator Perez reviewed the work completed by Respondent, to date, and took about 20 photographs. Respondent was not present during the inspection.

On or about September 23, 2019, Investigator 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. 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.) §§ 32-1154(A)(22) and 32-1154(E).

On or about September 25, 2019, Respondent called Investigator Perez and informed him that Complainant never complained of poor workmanship and that a third party painted over Respondent’s stucco repair.

On or about October 23, 2019, Investigator Perez conducted a Compliance Jobsite Inspection. At that inspection, Investigator Perez observed minor repairs but not enough to be in compliance with the Directive. Respondent was present at the Compliance Jobsite Inspection and alleged denial of access.

On October 23, 2019, the ROC issued a Citation to Respondent for alleged violations of A.R.S. §§ 32-1154(A)(3), 32-1154(A)(12), 32-1158, and 32-1154(A)(22), and A.A.C. R4-9-108. Respondent was given until November 8, 2019, to respond with its Answer or face discipline pursuant to A.R.S. §§ 32-1154(A)(22) and 32-1155.

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 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.

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

At the hearing, Investigator Perez testified that, during the Compliance Jobsite Inspection, there were visible and uneven cracks in the stucco repair that did not blend in with the walls and were “sticking out.” Investigator Perez opined that Respondent was not compliant with the Directive.

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 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.

On or about July 23, 2019, 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. Instead of blending, as Respondent stated it would, the repairs were blatantly mismatched and uneven in texture. Complainant immediately told his painter to stop painting.

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.

Complainant got a second opinion from another contractor, Steven Mitchel, who suggested that all of the walls needed to be redone completely. Complainant presented a notarized letter from Mr. Mitchel. In the letter, Mr. Mitchel opined that Respondent’s stucco work was so poorly done that it compromised the value of Complainant’s home.

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.

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.

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.

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.

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 Inspection but knew about the Compliance Jobsite Inspection. Mr. Orona testified that he tried to contact Complainant before the Compliance Jobsite Inspection but Complainant never responded.

Mr. Orona referred to his November 3, 2019, statement to the ROC. 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. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to A.R.S. § 41-1092 et seq.

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.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

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).

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.”

A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

A.R.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:

The name of the contractor and the contractor's business address and license number.

The name and mailing address of the owner and the jobsite address or legal description.

The date the parties entered into the contract.

The estimated date of completion of all work to be performed under the contract.

A description of the work to be performed under the contract.

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.

The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

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.”

A.R.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 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 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.”

A.R.S. § 32-1154(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. It 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.”

There is no evidence that Respondent violated A.R.S. § 32-1154(A)(12). Investigator Perez did not know which applicable elements were violated by Respondent. Furthermore, neither Complainant nor Respondent addressed this issue at the hearing.

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. § 32-1154(A)(3), namely A.A.C R4-9-108.

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 Inspection, Investigator Perez found that Respondent failed to rectify the mismatched stucco.

Respondent alleged denial of access at the Compliance Jobsite Inspection. Complainant established that Respondent had full access to his house and that Respondent was aware of the issues that needed to be corrected per the Directive.

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).

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. 240264 for a period of one (1) 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)(7), 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 January 15, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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