ALJDEC decisions subject to certification as final
2020A-04010-CHC-ROC · Registrar of Contractors · 2021-01-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Waylon Sears,
COMPLAINANT,
v.
Vallarta Construction, Inc.,
License Number ROC 186933,
RESPONDENT.
No. 2020A-04010-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 7, 2021
APPEARANCES: Complainant Waylon Sears appeared on behalf of himself. John Soukup appeared on behalf of Respondent Vallarta Construction, Inc. (Vallarta).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Vallarta holds General Dual KB-1 Dual Building Contractor license number
186933 issued by the Registrar of Contractors (Registrar).
John Soukup is the qualifying party for Vallarta.
In or about April 22, 2017, Complainant Waylon Sears entered into a
new home construction contract with Vallarta wherein Vallarta would build a new home for Mr. Sears. See the Registrar’s administrative record, pgs. 8-14. Vallarta was the general contractor for the project. See id at pg. 8. Mark Ferganchick was the project manager for the project. See the Registrar’s administrative record, pgs. 8-14.
Mr. Ferganchick also represented Mr. Sears in the new home construction contract.
See id.
4. On or about September 27, 2017, Vallarta began building Mrs. Sears’s home.
5. In or about September of 2018, Mr. Soukup notified Mr. Ferganchick
that there were cracks in the interior of Mr. Sears’s home. Mr. Soukup, Mr. Sears, and
Mr. Ferganchick agreed to wait three to four months to allow the cracks to develop and address the issue at one time. See id.
6. The home was substantially completed on October 19, 2018.
7. On or about August 19, 2020, the Registrar received a complaint from
Mr. Sears alleging abandonment and other construction defects on the part of Vallarta.
8. Registrar Investigator Gregory Johndrow mailed notice of the inspection and complaint to Vallarta’s address that was listed in the Registrar’s records.
9. On September 8, 2020, Investigator Johndrow conducted a jobsite
inspection.
10. On or about September 10, 2020, Investigator Johndrow issued a Directive to Vallarta to repair complaint items 3, 4, 5, and 6 by appropriate means, no later than September 28, 2020. Investigator Johnrow concluded that complaint items 1, 2, 7, 8, 9, and 10 did not require correction. The September 10, 2020 Directive provided, in relevant part, as follows:
..............
You are directed to remedy the following violations by the appropriate means:
Complaint Item 3: “Drywall cracking and breaking throughout the interior.”
Investigator’s Observation: Verified: The conditions described were observed in the master bedroom, south hallway and the living room.
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: “Some doors and hardware now out of alignment due to movement.”
Investigator’s Observation: Verified: The conditions described were observed at the doors to the master bath water closet and the workout room.
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 5: “Cracks and damage to structure due to movement.”
Investigator’s Observation: Verified: Duplicate of issues observed in items 3, 4 and 6.
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: “Master shower – tiles cracked due to movement.”
Investigator’s Observation: Verified: The conditions described were observed in four locations on the master shower walls.
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.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: “The framed walls both interior & exterior are moving /shifting for some unknown reason.”
Investigator’s Observation: This is a general allegation and not a specific item I can inspect or report on.
Governing Rule: N/A
Complaint Item 2: “Movement of structural and non structural components resulting in damage to the structure.”
Investigator’s Observation: This is a general alleagtion and not a specific item I can inspect or report on.
Governing Rule: N/A
Complaint Item 7: “Vallarta Const. (GC) is either unable, unwilling or both to honor warranty”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 8: “Vallarta Const. (GC) is either unable or unwilling to make repairs.”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 9: “Vallarta Construction owner John Soukup refuses to Make repairs or respond to home owners.”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 10: “Request reimbursement of repair expenses paid by home owner to date – Vallarta refuses to complete.”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
11. Vallarta did not receive notice of the complaint, the job site inspection, or
the Directive around the time of mailing because Mr. Soukup had moved from the residence where the correspondence was mailed by the Registrar. Mr. Soukup did not notify the Registrar of his new mailing address at the time that he moved.
12. Vallarta did not repair the items listed in the Directive.
13. On or about October 6, 2020, the Registrar issued a Citation against
Vallarta’s license. Through the Citation, the Registrar alleged that Vallarta may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. section 32-1154(A)(22).
14. Vallarta filed a timely response to the Citation.
15. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
16. On December 2, 2020, the Registrar issued a Notice of Hearing setting the
above-captioned matter for hearing on January 7, 2021.
17. On January 4, 2021, Investigator Johndrow conducted a prehearing
inspection and concluded that Vallarta had not performed any corrective work. Additionally, Investigator Johndrow observed that the drywall cracking had become worse.
18. A hearing was held on January 7, 2021.
19. At hearing, Mr. Sears testified on behalf of himself and presented the
testimony of Mr. Ferganchick. Mr. Sears submitted exhibits 1 through 4. Mr. Soukup testified on behalf of Vallarta. Investigator Johndrow testified regarding his investigation of the compliant and issuance of the Directive.
20. Mr. Sears testified that Vallarta performed poor work in the construction of
his home. Mr. Sears explained that Vallarta was the general contractor for the project.
21. Mr. Ferganchick explained that he was the project manager and Mr. Sears’s
representative in connection with the construction project. Mr. Ferganchick explained that Mr. Soukup had full control over the project, including supervision. Mr. Ferganchick stated that Mr. Soukup missed several meetings on-site. Mr. Ferganchick believed that the cracks were caused by movement related to the framing of the home.
Mr. Ferganchick stated that Mr. Soukup did not allege that the cracks were caused by exterior awnings prior to his October 30, 2020 email to Investigator Johndrow.
Mr. Ferganchick stated that Mr. Soukup installed the awnings.
22. Mr. Ferganchick explained that in October of 2019, Mr. Sears hired another contractor to correct the cracks. Mr. Ferganchick described the repairs as “cosmetic”. The contractor performed drywall patching to cover the cracks in the interior walls and the roof and repainted the respective areas.
23. Investigator Johndrow concluded that Vallarta was the general contractor for the project based on the written contract between Mr. Sears and Vallarta. At the time of the initial inspection, Investigator Johndrow observed cracking at the south and southwest sections of the home. In his later inspection, Inspector Johndrow noticed that the southeast portion had new cracking. Investigator Johndrow testified that the awnings were located on the east side of the home. Investigator Johndrow could only speculate as to the cause of the cracks in the home.
24. Mr. Soukup testified that Vallarta was not the general contractor. Mr. Soukup
asserted that Vallarta was only responsible for on-site supervision. Mr. Soukup testified that there are two steel awnings on the south side of the home and that the awnings caused the cracks. Mr. Soukup stated that Mr. Ferganchick told him that he would take care of warranty issues. Mr. Soukup testified that he was going through a divorce at the beginning of last summer and did not have access to email. Although Mr. Soukup eventually notified the Registrar of his new address, Mr. Soukup failed to notify the Registrar in sufficient time to receive the complaint, job-site inspection, and the Directive.
25. Administrative notice is taken of Respondent’s prior License record on January 26, 2021. Such prior License record reflects that Respondent’s License No. 186933 was first issued on August 26, 2003 and has expired. Such prior License record also reflects Respondent’s License No. 186933 has never been disciplined.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
section 32-1154(A).
2. The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. 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).
4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
6. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 186933 issued to Vallarta Construction, Inc., for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, January 26, 2021.
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 is forty days after the date of that certification.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors