ALJDEC decisions subject to certification as final
2020A-02297-CHC-ROC · Registrar of Contractors · 2021-03-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Edi Francesconi,
COMPLAINANT
v.
Del Grosso Painting LLC
License Number ROC 302281,
RESPONDENT
No. 2020A-02297-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 11, 2021
APPEARANCES: Complainant Edi Francesconi, appeared via Google Meet. Roberto Del Grosso, appeared via Google Meet on behalf of Respondent Del Grosso Painting LLC. Dennis Bierma, Investigator for the Registrar of Contractors appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Del Grosso Painting LLC (Respondent) is the holder of License No. 302281 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 6, 2018, Edi Francesconi (Complainant) entered into an oral agreement with Ralph Del Grosso to paint, install a porch and to fix various areas on the residence due to water damage at her residence.
On or about May 7, 2020, the Registrar received a Complaint containing seventeen items against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Dennis Bierma. The jobsite inspection was performed on May 29, 2020.
Investigator Bierma then issued a written directive on or about June 4, 2020 to Respondent that provided as follows:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on July 10, 2020.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.
If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.
Complaint Item 1: “Ralph and I agreed to have existing porch fixed of leak – now leaking.”
Investigator’s Observation: Verified: There is clear evidence of water damage in the ceiling of the back porch. Also, the ceiling work has not been completed. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 2: “Replaced pillars with new ones that were cracked – twice – crooked.”
Investigator’s Observation: Verified: Pillars are not all installed in the same position below the beam. Pillar on the end is not level and straight. Also, these pillars have not been completed. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “Replaced sliding doors – external – now they leak and floor is ruined.”
Investigator’s Observation: Verified: There are areas just inside the new door sill where the floors are popping up, the project of new sliding door installations has not been completed. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: “Replaced side door, supposedly fire door – light comes through from side.”
Investigator’s Observation: Verified: Excessive amount of exposed light coming through new door, the door installation has not been completed. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 7: “New porch is incomplete because he got made when I complained.”
Investigator’s Observation: Verified: I have verified that the porch has not been completed. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “I discovered no permit was issued for new porch.”
Investigator’s Observation: Verified: Verified the new porch addition requires a building permit to be obtained from the local city jurisdiction. This shall be corrected.
Governing Rule: A.R.S. § 32-1154 (A) 2: Departure from or disregard of: (b) A building code...
Complaint Item 9: “I discovered that he does not have a building license, only for painting.”
Investigator’s Observation: Verified: This item has been verified and the appropriate actions will be taken.
Governing Rule: A.R.S. § 32-1154 (A) 16: Kowingly contracting beyond the scope of the license or licenses of the licensee.
(All errors contained in the original).
On or about July 23, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).
On or about September 11, 2020, Respondent submitted its Written Answer to Citation and Complaint.
On or about December 7, 2020, the Registrar issued a Notice of Hearing scheduling a hearing on January 14, 2021, before the Office of Administrative Hearings, an independent State agency.
After several continuances, a hearing was held on March 11, 2021.
At the outset of the hearing, Complainant’s seven exhibits were entered into the record as well as Respondent’s one exhibit.
Investigator Bierma testified as to his involvement with the inspections and his directives.
Investigator Bierma testified that some of the work was outside the scope of the license and some work required a building permit which was never obtained.
Investigator Bierma testified that he believed that there was a valid contract as evidenced by the personal checks issued from Complainant.
Investigator Bierma stated that he received a phone call from Roberto Del Grosso, Ralph Del Grosso’s son who stated that they were working on a resolution with Complainant.
Investigator Bierma testified that he believed that the time to complete the repairs was sufficient, but acknowledged that there could have been delays in obtaining the building permit.
Complainant testified that she has known both Ralph and Roberto Del Grosso and considered them family friends.
Complainant testified that Ralph previously completed work for her friend.
Complainant testified that she paid $10,237.00 for the work which remained uncompleted.
Complainant testified that Ralph had a company called, Eclanum Painting, but that he had obtained a contractor’s license and changed the name of the company to Del Grosso Painting. Complainant further testified that while she saw a business card with Del Grosso Painting on it, there was no workers with shirts with the company name nor work trucks with the name on the same.
In addition, Complainant testified that Ralph had left the project to travel to Italy and when he came back, she told him the work was no good and Ralph got mad and did not return to the jobsite.
Complainant testified that Roberto was never out to do any of the initial work, but was willing to help with the Directive requirements and supplied three names of properly licensed contractors to complete the work.
Finally, Complainant testified that Roberto was a tax preparer as he had prepared her taxes in the past, and that it was Ralph’s company based upon his representations.
Roberto Del Grosso testified that while his father used to work for him, he had since retired.
Mr. Del Grosso testified that that he did not know about the work until his company received the Complaint, and that he jumped in to try to rectify the situation. Mr. Del Grosso testified that his dad never told him he was working on a project for Complainant and that he was completely “in the dark.”
Mr. Del Grosso testified that he did not go to the jobsite inspection due to COVID-19 concerns as he had pre-existing conditions.
In addition, Mr. Del Grosso testified that provided the names of three general contractors to Complainant, but believed there were problems with Complainant hiring the same.
Mr. Del Grosso testified that all of the checks written by Complainant were made payable to “Ralph Del Grosso” for materials and/or laborers.
Finally, Mr. Del Grosso testified that this was one giant misunderstanding and remained willing to help Complainant due to their long-standing friendship.
Administrative notice is taken of Respondent’s prior License record on March 15, 2021. Such prior License record reflects that Respondent’s License No. 302281 was first issued on December 18, 2015, and is active. Such prior License record also reflects that there is 1 open complaint, namely the present complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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).
The first issue is whether Respondent is the proper party in this action. Neither party called Ralph Del Grosso as a witness to help explain his actions. The evidence demonstrated that while Complainant believed that she was contracting with Respondent, she made all of her payments to “Ralph Del Grosso” personally. Further, in the Complaint, Complainant lists “Ralph Del Grosso – Del Grosso Painting.” Finally, Complainant testified that Roberto was not on the jobsite at the commencement of the project and did not even know he was involved in the business as he was her tax preparer. Roberto testified that he had no knowledge that his father had taken this project, and that Del Grosso Painting did not enter into any agreement with Complainant. Therefore, the Administrative Law Judge believes that Respondent is not the proper party in this matter.
There is no question that there were violations with this project, however, Respondent cannot be held responsible for the same as Ralph Del Grosso obtained the job for himself.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar close as dismissed Complainant Edi Francesconi’s complaint in case number 2020A-02297 against Respondent’s License No. 302281.
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 30 days from the date of that certification-54864001
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Done this day, March 18, 2021.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
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