ALJDEC decisions subject to certification as final

2019A-05063-CHC-ROC · Registrar of Contractors · 2020-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marco Antonio Flores,

COMPLAINANT,

v.

Celerino A Gallardo LLC,

DBA: Maxx Builders,

License Nos. ROC 263152, ROC 293763,

RESPONDENT.

No. 2019A-05063-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 15, 2020, at 1:00 p.m.

APPEARANCES: Marco Antonio Flores (“Complainant”) appeared telephonically on his own behalf; Celerino A. Gallardo LLC DBA: Maxx Builders (“Respondent”) appeared telephonically through Celerino A. Gallardo, its qualifying party/managing member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. ROC 263152, Class KB-2 for Dual Residential and Small Commercial Contracting and ROC 293763, Class R-37 for Residential Plumbing to Respondent.

The Registrar referred Complainant’s complaint against Respondent’s contractor’s license to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

A telephonic evidentiary hearing was held on April 15, 2020. Complainant submitted seven exhibits and testified on his own behalf. Respondent submitted two exhibits and presented the testimony of its qualifying party/managing member, Celerino A. Gallardo. The Registrar’s assigned Investigator, Ruben Perez, Sr., also testified.

Hearing Evidence

On or about October 4, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged that it had performed poor work constructing Complainant’s new home in Somerton, Arizona. Complainant attached certain documents to his complaint, including a purchase contract that was dated September 17, 2018, and a Certificate of Occupancy that was issued on September 25, 2018.

Complainant alleged in the October 4, 2019 complaint that Respondent’s ,workmanship was poor on eighteen specific items of construction, including that the stucco was not evenly applied and had cracks, that the concrete in the front entry was not level, and the “perimeter wall footing.”

Investigator Perez performed a jobsite inspection on November 14, 2019, when Complainant added four more items to the complaint. Investigator Perez testified that on November 14, 2019, he issued a directive requiring Respondent to correct ten of the 22 complaint items, including the concrete at the front entrance, which had water that was 1⁄4” deep after 30 minutes of flooding, and the foundation of the block wall on the south side of Complainant’s house, which was exposed up to two inches above the concrete slab.

On December 5, 2019, Complainant filed an addendum to the October 4, 2019 complaint, alleging another 7 items, including that the tile was uneven all over the house, that the tile was chipped, that the grout for the tile was missing or not evenly applied, and that the tile had excessive lippage.

On December 13, 2019, Investigator Perez performed a second jobsite inspection. On December 17, 2019, Investigator Perez on behalf of the Registrar issued a second directive and amended second directive, requiring Respondent to correct certain aspects of the floor on or before January 7, 2020, at 5:00 p.m., in relevant part as follows:

Complaint Item 1: Uneven tile all over the house

Investigator’s Observation: Several tile pieces throughout house were observed with lippage exceeding the minimum standard of 1/16”.

. . . .

Complaint Item 2: Tile not fully bonded to sub-floor over the house.

Investigator’s Observation: One tile piece in master bathroom (in front of left sink) was observed to be hollowed and not bonded to subfloor. All other pieces in question were solidly bonded to subfloor.

Complaint Item 3A: Chipped tile.

Investigator’s Observation: Three pieces of tile were observed to be chipped or have broken/missing piece prior to installation. These tiles are in the living room including one tile near the kitchen counter.

. . . .

Complaint Item 4: Tile grout joint missing partially and/or not evenly applied

Investigator’s Observation: A small section of grout was observed missing at the door frame to the Southeast bedroom. Several locations of irregular grout were observed throughout the house.

. . . .

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 3B: Chipped tile

Investigator’s Observation: Several pieces of tile throughout house were observed to have minor chips. There was insufficient evidence to support what or who cause[d] these chips. There were also some tile pieces that had minor imperfections from manufacturer initially believed to be chips.

. . . .

Complaint Item 6: Lippage between tile to adjacent tile

Investigator’s Observation: This item was addressed in complaint item 1.

On January 22, 2020, Investigator Perez performed a compliance jobsite inspection. Investigator Perez’ notes indicate that Respondent corrected most items on both directives, with the exception of four items, including that Respondent had failed to adequately repair the stucco on the southeast corner of the house, that the south perimeter wall’s footing was still exposed above the concrete slab, and that there were several tile pieces throughout the house with lippage exceeding 1/16”. Investigator Perez referred the matter to the Registrar’s Legal Department.

On January 29, 2020, the Registrar issued a Citation against Respondent’s licenses, charging cause to suspend or revoke the licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, stating that it was attempting to schedule repairs to the remaining outstanding workmanship issues.

At the hearing, Investigator Perez testified that he performed a prehearing jobsite inspection on April 14, 2020. Three of the four items identified on his compliance jobsite inspection notes had been corrected to comply with the Registrar’s and construction industry standards. The only exception was that, although Respondent had performed some additional repairs to the tile floor, there were a couple tiles in the living room where he observed lippage in excess of 1/16”. Investigator Perez testified that he did not inspect the whole house at the prehearing jobsite inspection.

Complainant did not submit evidence of and did not testify that other tiles in the house had excess lippage, although he testified that grout was continuing to chip throughout the house.

Investigator Perez testified that the chipped grout that Complainant complained about at the hearing was not in the original complaint, the complaint items added at the jobsite inspection, or the addendum to the complaint. Investigator Perez testified that Respondent had adequately repaired the chipped grout that was at issue to comply with the Registrar’s directives.

Complainant remained dissatisfied with the perimeter block wall on the south side of his house. Complainant testified that it was still possible to move the wall and that he was concerned about his children’s safety when they played near the wall.

Investigator Perez testified that the wall was structurally sound and that he had not observed any movement. Perimeter walls are more akin to fences and are not designed to withstand an extremely strong or deliberate force.

Complainant also remained dissatisfied with the color of the grout that Respondent used for repairs, which was not exactly the same shade as the existing grout.

Investigator Perez testified that the grout was within one shade of the existing grout and had not yet cured. The color of the grout met the Registrar’s and industry standards.

Mr. Gallardo was willing to have Respondent repair remaining tile deficiencies. But Complainant was not willing to accept the repairs unless Respondent also agreed to repair the perimeter wall on the south side of his house to his satisfaction.

Pursuant to A.A.C. R4-9-117, the Administrative Law Judge attempted to take administrative notice of Respondent’s license histories on the Registrar’s public website on this date. License No. ROC 293763 was current and in good standing, and no discipline appeared to have been taken against the license on the current record. The disciplinary history for License No. ROC 263152 was not available; for purposes of the recommended decision in this matter, the Administrative Law Judge assumes the disciplinary history for License No. ROC 263152 is the same as for License No. ROC 293763.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Because a couple tiles in Complainant’s living room still have excess lippage, Complainant established cause to suspend or revoke Respondent’s contractor’s License No. ROC 263152 under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Complainant did not establish any other construction deficiencies among the items included on the original complaint, the items added at the jobsite inspection, or the addendum to the complaint. Respondent’s responsiveness and the minor nature of this remaining defect are considered as factors in mitigation of the penalty.

Because Respondent did not use its License No. ROC 293763 to construct the items that Complainant complained about, that license should not be disciplined.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that, on the effective date of the final order in this matter, License No. ROC 263152 of Respondent Celerino A. Gallardo LLC DBA: Maxx Builders shall be suspended for a period of one (1) business day.

It is further ordered that the Respondent shall pay the sum of $100.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

If Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, the Registrar shall 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 five days from the date of that certification.

Done this day, April 23, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors