ALJDEC decisions subject to certification as final

2020A-03492-CHC-ROC · Registrar of Contractors · 2021-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jaime F. Crockwell

COMPLAINANT

David Arturo Rodriguez

License No. 329021,

RESPONDENT

No. 2020A-03492-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 18, 2020

APPEARANCES: Complainant Jaime F. Crockwell appeared on his own behalf. David Arturo Rodriguez appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

David Arturo Rodriguez (Respondent) is the holder of License No. 329021 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 21, 2019, Jaime F. Crockwell (Complainant) entered into a contract with Respondent for a renovation project to include the following:

Demo all existing tile, baseboard, Durock & all water damage plywood. Install new plywood as needed, install new Durock on all new flooring area. Install new 6x36 plank tile on complete interior, install approx 375 linear feet of 4inch baseboard with round corners, grout & seal. Haul all debri out & clean up all demo materials.

All errors in original.

Two versions of the contract were submitted with the agency record in this matter, both of which were signed on August 21, 2019. In one, the total contract price was $24,288.70 with half due for materials and the balance due upon completion. In the other, the total contract price was $20,542.42 with half due for materials and the balance due upon completion. The contracts did not include the estimated date of completion or an advisement that the property owner had the right to file a written complaint with the Registrar.

On or about July 21, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

With the complaint, Complainant submitted a check from Farmers Insurance made payable to Bayview Loan Servicing LLC, Complainant, DC Restoration. Complainant also submitted Disbursement Check Vouchers documenting payments from Bayview Loan Servicing LLC payable to “RAFAELA A CROCKWELL and JAIME F CROCKWELL and David Rodriguez” that were dated September 24, 2019, for $10,271.21; November 8, 2019, for $11,145.40; and January 6, 2020, for $10,469.26.

The Registrar assigned the complaint to Investigator James Vildusea. Investigator Vildusea conducted a jobsite inspection.

On or about August 21, 2020, Investigator Vildusea issued a written directive 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 September 21, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1A: “PAINTING WAS NOT FINISHED IN SOME AREAS”

This was described by complainant to be:

• An unpainted window sill located above the main entry door

• An unpainted ledge leading from the stairway to the upper bedrooms

• Missing wall paint along the ceiling line from the upper stairway

• Unpainted drywall patches in the bathroom ceiling

• Painter’s plastic and tape on the chain of the ceiling mounted entry light

• Paint peel from the base trim installed alongside the master bathroom tub

Investigator’s Observation: Verified: All areas of incomplete and/or poor paint work are as described by the complainant.

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: “UPSTAIRS TILE IS BREAKING WHEN WALKED ON AND IS LOOSE ...aprox 1850 square feet”

Investigator’s Observation: Verified: During the jobsite inspection, the tiles were loose from the floor. This was evident as the tiles could be felt moving under the feet when walking on the floors. Numerous areas of hollow sounding tiles existed and areas of chipping and missing grout, and several broken tiles were seen. This condition was consistent throughout the upper level of the home. Additionally; the tile installed does not match the tile specified in the written agreement. The written agreement specifies a 6 by 36 plank tile. The tile installed is approximately a 12 by 24 tile.

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.

Following the issuance of the written directive, Respondent denied any responsibility for the work performed and identified in the written directive. Accordingly, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Vildusea 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; A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B) and A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Vildusea testified as to his observations of the jobsite and the work performed. Investigator Vildusea also referenced the proof of payments made payable to Complainant and Respondent that were endorsed by Respondent as support for his conclusion that Respondent was responsible for the work at issue in this matter.

At hearing, Complainant acknowledged that Respondent did not perform the tile work at issue in the complaint. Complainant stated that he found a different contractor through a family member that agreed to do the work that individual was not licensed by the Registrar to perform the work. According to Complainant, Respondent agreed to let the individual “use” Respondent’s license number to ensure the mortgage company would pay for the work. Complainant maintained that Respondent met Complainant at the bank and endorsed the checks so Complainant could deposit the funds into his account and pay the other individual for the work performed. Complainant stated that Respondent took some amount of the funds for tax purposes.

At hearing, Respondent denied that he performed the work at issue in the written directive. Respondent acknowledged that he endorsed the checks made payable to him and Complainant, but denied that he received any of the funds. Respondent offered no reasonable explanation as to why he would sign the checks made payable to him from the mortgage company without having performed any work or receiving any funds. Respondent denied any knowledge that a different individual was using his license number. Respondent indicated that he had an agreement with Complainant that after some work was completed, Respondent would perform additional work on the project.

Administrative notice is taken of Respondent’s prior License record on January 6, 2021. Such prior License record reflects that Respondent’s License No. 329021 was first issued on May 22, 2020, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 evidence established that the work on the project was not in compliance with the Registrar’s standards. However, Complainant acknowledged that Respondent did not perform the work at issue. Accordingly, Complainant failed to establish 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.

The evidence established that Respondent knowingly endorsed checks made payable to him and Complainant to allow Complainant to obtain the funds to pay someone else to perform work on the project. While Respondent denied allowing an unlicensed contractor to use his license number, those denials were not credible in that Respondent knew he was being paid for work he was not performing. The only reasonable explanation for such an action by Respondent was to allow Complainant to use the funds to pay an unlicensed contractor. Accordingly, Complainant established that Respondent attempted to evade the Registrar’s statutes by aiding and abetting an unlicensed person in violation of A.R.S. § 32-1154(A)(9)(a), and thereby A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. However, because Respondent did not perform the work that was found to be deficient, Respondent was not obligated to correct the work. Therefore, Complainant failed to establish 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).

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. 329021 for a period of three days.

It is further recommended Respondent’s License No. 329021 shall be suspended based on its violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A) until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(A).

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.

-54864001

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-137160-45720000Done this day, January 7, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000