ALJDEC decisions subject to certification as final

2020A-04830-CHC-ROC · Registrar of Contractors · 2021-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Denise LeGros ,

COMPLAINANT,

v.

Valdez Glass & Mirrors LLC

dba Custom Showers and Windows by

Referral,

License No. ROC 318270,

RESPONDENT.

No. 2020A-04830-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 30, 2021 at 1:00 PM.

APPEARANCES: Denise LeGros (“Complainant”) appeared on her own behalf with Christopher Fultz as a witness. No appearances by or on behalf of Valdez Glass & Mirrors LLC (“Respondent”). Daniel Mullany observed. Gariella Contreras served as the interpreter.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On March 02, 2018, the Registrar issued License No. 318270 Specialty Dual CR-65 Glazing contracting to Respondent. The license is currently active and renewed through March 31, 2022. Teresa Leonard is the Qualifying Party on the license, and Javier Valdez is the Manager. Respondent’s address of record for the license is 5037 N. 54th Ave. Ste. 3 Glendale, AZ 85301-0321. Respondent has an active $10,000.00 surety bond on the license effective June 10, 2020. There is one prior disciplinary incident noted for the license, and one open complaint which is presumably Complainant’s.

Complainant owns residential property located at 19442 N. 23rd Way Phoenix, AZ 85024.

On or about July 29, 2020, Complainant and Respondent entered into a $5,889.00 for the installation of 11 windows and 1 sliding glass door at Complainant’s residence. Complainant paid $4,445.00 towards the project. The project commenced on August 27, 2020, and was completed on September 06, 2020.

On or about October 09, 2020, the Registrar received a 7-item complaint from Complainant against Respondent’s License No. 318270 alleging poor workmanship of their project. The Registrar designated it Complaint No. 2020-04830 and assigned to Christopher Fultz (“Investigator Fultz”) for investigation.

On October 19, 2020, Investigator Fultz issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on November 09, 2020, at 10:00 a.m.

On November 09, 2020, Investigator Fultz conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 14 photographs of the project site. When he was finished, Investigator Fultz drafted his Inspection Notes. Ultimately, Investigator Fultz dismissed the complaint. Investigator Fultz noted that “there is a lot of repair needed in the stucco and some in the drywall to properly seal the home from the items listed in [Complainant’s] complaint,” but reasoned that the contract stated “WE DO NOT SO STUCCO OR DRYWALL REPAIR!” in bold capital letters in the first line of the parties’ contract. Investigator Fultz concluded that Respondent’s installed the windows at issue per industry standards, and reasoned that the issues Complainant had with cracking caulking was consistent with exposure to warmer indoor air and cooler outside air.

On December 22, 2020, the Complaint No. 2020-04830 was reopened due to new information it received.

On December 29, 2020, Investigator Fultz issued a secondary Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 13, 2021, at 10:00 a.m.

On January 13, 2021, Investigator Fultz inspected the project with Senior Investigator Steve Lawton and took 4 photographs. When he was finished, Investigator Fultz drafted his Inspection Notes. Ultimately, Investigator Fultz substantiated 4 of 7 complaint items. Specifically, Investigator Fultz verified complaint items 1-2, and 5-6. Investigator Fultz concluded that Respondent’s window installation failed to meet the Registrar’s minimum workmanship standards.

On January 19, 2021, Investigator Fultz issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that he had until 5:00 p.m. on February 19, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).

Investigator Fultz did not conduct a Compliance Jobsite Inspection in this matter because Complainant confirmed that no corrective work had been performed on the project.

On February 22, 2021, Investigator Fultz forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On February 19, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until March 13, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On March 09, 2021, the Registrar received Respondent’s Answer whereby Respondent denied all of Complainant’s allegations. On March 23, 2021, the Registrar received an addendum to Respondent’s Answer.

On March 15, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 30, 2021. Per the March 29, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf, called Investigator Fultz as a witness, and submitted 5 exhibits into the record. Although a grace-period was afforded by the Tribunal, there was no appearance(s) by or on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant did not deny Respondent access to the project site during the Directive compliance period.

Since the window installation, Complainant has sustained significant water damage to her residence. Additionally, Complainant’s electric utility bill has increased as a direct result of Respondent’s poor quality window installation.

In closing, Complainant opined that disciplinary action should be taken against Respondent’s license because he made no attempt to correct the deficiencies in his workmanship, and a result she sustained actual harm.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the Registrar may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.

The material facts in the case at bar are not in dispute.

It is undisputed that Complainant paid Respondent $4,445.00 towards the $5,889.00 underlying project, and that some of the work Respondent performed did not satisfy the Registrar’s minimum standards set for workmanship. It is also undisputed that Respondent was required to timely perform corrective work pursuant to the January 19, 2021, Directive, and that Respondent failed to timely comply.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has not sustained his burden of proof. Because Respondent failed to appear, the record is devoid of mitigation evidence to refute Complainant’s evidence and justify subpar workmanship and corrective inaction in this matter.

Therefore, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Valdez Glass & Mirrors LLC, ROC License No. 318270, be suspended for two (2) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

IT IS FURTHER RECOMMENDED that Respondent shall pay the sum of $200.00 in certified funds to the Registrar as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s 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 Ariz. Rev. Stat. § 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.

Done this day, May 19, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors