ALJDEC decisions subject to certification as final

2020A-03905-CHC-ROC · Registrar of Contractors · 2021-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Armando R Lopez Jr.,

COMPLAINANT

Valencia Quintana LLC,

License No. ROC 223056,

RESPONDENT

No. 2020A-03905-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 29, 2021

APPEARANCES: Complainant Armando R. Lopez Jr. appeared on his own behalf. Ricardo Valencia, Owner and Qualifying Party, appeared on behalf of Respondent Valencia Quintana LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Valencia Quintana LLC (Respondent) is the holder of License No. 223056 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 10, 2018, Armando Lopez (Complainant) signed a contract with Respondent for the installation of a new roof.

On or about August 17, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 October 6, 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 reasons, 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 1: “Roof started leaking in multiple locations several months after new roof was installed. The principal leak is by the chimney area and leaks when it rains. Rodrigo Valencia was contacted regarding the leak since he was the primary point of contact when leaks first appeared, but no calls were returned. Ricardo Valencia, Rodrigo's father and business owner was contacted after attempts to contact Rodrigo proved futile. Ricardo stated the repairs would be completed and several attempts were made to repair the roof leak by the chimney over several months, but the roof continues to leak. The wood underneath the chimney area in the crawlspace between the ceiling and the roof is rotting now due to the water damage. No cricket was installed nor any type of metal flashing by the chimney, only roof shingles and tar. When the topic of a cricket was brought up I was advised by Ricardo Valencia it would be an extra charge even though it should have been included with the roof. During one of the attempted repairs, close to one hundred nails were observed removed from a small area of the roof. The roof is also leaking from the area of the swamp cooler and water is now appearing in the interior of the residence and in the crawlspace between the ceiling and the roof. The wood in that area is very moist and appears to be rotting as well. Water is also observed in the interior of the residence on the southwest side when it rains.”

Investigator’s Observation: Verified: At the time of this inspection the Respondent acknowledged the conditions described in this complaint item. The Respondent stated corrective work has been performed and no testing was done to confirm the issues have been resolved. The Respondent stated he takes full responsibility for any roof leaks and damage caused within the attic and interior of the residence as a result of any leak.

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 performed some corrective work. On or about December 11, 2020, after the deadline in the directive expired and multiple extensions had been granted, Investigator Johndrow conducted a compliance jobsite inspection and determined Respondent had not taken appropriate corrective action to comply with the directive.

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); and A.R.S. § 32-1154(A)(22).

Investigator Johndrow testified as to the Registrar’s involvement in this matter and his observations during the jobsite and compliance inspections. Investigator Johndrow stated that Complainant asked for five or six extensions of the deadline to allow Respondent more time to complete the corrective work. From the issuance of the directive to the expiration of the last extension, Respondent had 76 days to complete the corrective work. In addition, Investigator Johndrow did not perform the compliance inspection until 10 days after the expiration of the last extension. Therefore, Respondent had a total of 86 days before the compliance inspection to complete the corrective work and failed to do so. Investigator Johndrow stated that according to the Registrar’s records, Respondent’s license was revoked as of June 1, 2021.

Complainant testified that after giving Respondent multiple extension and the corrective work still not being done, he hired an independent inspector. After receiving the report and the compliance inspection had been completed, Complainant hired another company to complete the repairs because the roof was leaking and causing more damage to the interior of the home.

Mr. Valencia testified that he was unaware that Respondent’s license was revoked on June 1, 2021. Mr. Valencia acknowledged Complainant’s testimony. Mr. Valencia stated that he knew he had an unhappy customer and he needed to address that.

Administrative notice is taken of Respondent’s prior License record on July 14, 2021. Such prior License record reflects that Respondent’s License No. 223056 was first issued on October 19, 2006, and is active. Such prior License record also reflects that there were two open complaints, six resolved/settled complaints, and two prior complaints resulting in discipline 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 Respondent’s work was not in conformity with the Registrar’s standards. Therefore, 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(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established 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. 223056 for a period of five days.

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)(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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, July 14, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000