ALJDEC decisions subject to certification as final
2020A-05310-CHC-ROC · Registrar of Contractors · 2021-04-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Adelina Francisco ,
COMPLAINANT,
v.
Yuma's Best Pro Builders LLC
dba YBP Builders,
License No. ROC 316449,
RESPONDENT.
No. 2020A-05310-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 07, 2021 at 1:00 PM.
APPEARANCES: Adelina Francisco (“Complainant”) appeared on her own behalf with Ruben Perez, Sr. as a witness. Caesar Chavez appeared on behalf of Yuma’s Best Pro Builders LLC (“Respondent”). Cynthia Corñello observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar of Contractors (“Registrar”).
FINDINGS OF FACT
Background and Procedure
On October 24, 2017, the Registrar issued License No. 316449 for general dual KB-2 Dual Residential and Small Commercial contracting to Respondent. Respondent’s address of record for the license is 13113 E. 39th Pl. Yuma, AZ 85367-5866. Caesar Chavez is listed on the license as the Qualifying Party/Member.
Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 316449, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through October 31, 2021. The license has not been previously disciplined. The record, however, reflects that there are five (5) open complaint against Respondent’s license, one of which is presumed to be related to this matter. Respondent has a $14,000.00 surety bond for the license issued through RLI Insurance Company, effective October 20, 2017.
On November 06, 2020, the Registrar received a complaint filed by Complainant alleging poor work performance on residential concrete project. Specifically, Complainant alleged that the sidewalk and driveway of her newly built home were cracking and lifting.
On November 12, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on December 07, 2020, at 10:00 a.m.
On December 07, 2020, Registrar investigator Ruben Perez Sr. (“Investigator Perez”) inspected Complainant’s driveway and sidewalk, and took 6 photographs of the project. When he was finished, Investigator Perez drafted Jobsite Inspection Notes. Specifically, Investigator Perez substantiated both of Complainant’s 2 complaint items, finding that there was a “3/8 vertical displacement” in Complainant’s sidewalk and a “3/16 crack with 1⁄4 vertical displacement” in Complainant’s driveway.
On December 08, 2020, Investigator Perez issued a Directive from the Registrar to Respondent because he substantiated Complainant’s workmanship allegations. Respondent was put on notice that he had until 5:00 p.m. on January 11, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).
On December 21, 2020, the Registrar received an addendum complaint filed by Complainant alleging additional workmanship deficiencies against Respondent. Specifically, Complainant alleged that entrance where the driveway and walkway met had begun to separate.
On December 30, 2020, Investigator Perez issued a secondary Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site on January 19, 2021, at 10:00 a.m. to address Complainant’s addendum complaint against Respondent.
On January 19, 2021, Investigator Perez inspected Complainant’s driveway again but did not substantiate her additional workmanship complainant against Respondent.
On January 19, 2021, Investigator Perez escalated Complaint 2020-05310 to the Registrar’s legal department with a Citation recommendation.
On January 26, 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 February 10, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On January 27, 2021, the Registrar received Respondent’s Answer. In pertinent part, Respondent noted “I have made a decision in regards to this claim. I have contacted my insurance and filled a claim, they will take care of any repairs that need to be made. I do apologize for this matter.” [sic]
On February 10, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 07, 2021. Per the March 05, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:
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 and called Investigator Perez as a witness. Caesar Chavez testified 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 owns residential property located at 1164 W. Rose St. Somerton, AZ 85350. On January 31, 2020, escrow on the newly constructed property closed. Complainant took possession of the home that same day. There is a one (1) year warranty for the home.
The general contractor who built Complainant’s home hired Respondent as a subcontractor to pour the concrete for Complainant’s driveway and sidewalk.
On or about March 11, 2019, Respondent commenced work on the project. On or about April 04, 2019, Respondent completed work on the project.
Approximately six (6) months after move-in, Complainant contacted Respondent with concerns regarding cracks and separations in the concrete he poured. Respondent referred Complainant to the general contractor, who in turn referred Complainant to the Registrar.
Respondent never made an attempt to comply with the Registrar’s Directive.
In closing, Complainant argued that Respondent, not the general contractor, was responsible for repairing and/or replacing the concrete work at issue, and that if Respondent would have arranged for another appropriately licensed contractor to make the corrections or offer her a financial settlement she would have accepted.
In closing, Respondent argued that he did not take any steps to remediate the workmanship deficiencies identified by the Registrar’s Directive because he did not believe the issues were his responsibility. Specifically, Respondent opined that expansive soil was to blame for the cracks and separations in the concrete he poured for Complainant. Respondent further argued that he was indemnified from liability as subcontractor on the project, and that the general contractor should be held responsible for any workmanship issues on the project.
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.
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.”
The material facts in the case at bar are not in dispute.
It is undisputed that Respondent poured the concrete sidewalk and driveway for Complainant’s newly built residence in or around late-March 2019. It is also undisputed that there is a one (1) year workmanship warranty for the property, including Respondent’s concrete work. It is further undisputed that as a result of Respondent’s poor workmanship, the Registrar issued a Directive that required Respondent’s compliance no later than January 11, 2021. It is undisputed that Respondent failed to 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’s arguments that expansive soil was responsible the damage to Complainant’s concrete, or that he was indemnified from liability, are meritless as Respondent failed to provide an indicia of evidence to support either contention – such as an expansive soil study conducted by a geotechnical engineer or Respondent’s subcontract agreement with HAC. Therefore, it cannot be concluded that Respondent satisfactorily sustained the requisite burden of proof.
Because Complainant established 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 Yuma's Best Pro Builders LLC, ROC License No316449, be suspended for two (2) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).
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, April 27, 2021.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors