ALJDEC decisions subject to certification as final

2021A-00033-CHC-ROC · Registrar of Contractors · 2021-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Suzana Maria Davila,

COMPLAINANT

Jesus Lizarraga Florez,

DBA: Florez Construction,

License No. ROC 240893,

RESPONDENT

No. 2021A-00033-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 10, 2021

APPEARANCES: Complainant Suzana Maria Davila appeared on her own behalf. Respondent Jesus Lizarraga Florez, doing business as Florez Construction, appeared on his own behalf. Arizona Registrar of Contractors Investigator Gregory Johndrow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Jesus Lizarraga Florez, doing business as Florez Construction (“Respondent”), is the holder of License No. 240893 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about May 29, 2019, Suzana Maria Davila (“Complainant”) contracted with Respondent for the construction of a custom home. See Agency Record at 12.

On or about January 4, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. See Agency Record at 2.

The Registrar assigned the Complaint to Investigator Gregory Johndrow. After a February 8, 2021 Jobsite Inspection at which both parties were present, Investigator Johndrow issued a Written Directive to Respondent that provided as follows:

directed to remedy the following violations by the appropriate means: 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 March 18, 2021.

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

Complaint Item 1: “Subfloor in garage, south wall, leaks from exterior - since day 1. He knows, but blames others.”

Investigator’s Observation: Verified: Moisture was observed on the concrete floor of the garage along the south wall. The south wall has moisture damage.

Complaint Item 2: “Drywall seams cracking and ripping tape /paint”

Investigator’s Observation: Verified: Drywall cracks were observed at the

interior, in the garage at the inside corner behind the hinged door, on the north west hallway ceiling and in the kitchen / living room ceiling in multiple areas. A drywall bubble was observed on the ceiling above the kitchen island. Drywall cracks were observed on the exterior ceiling cantilevers at the east and west sides of the residence. Drywall bubbling and blistering was observed on the exterior ceiling cantilever at the east side.

Complaint Item 3: “Ceiling paint doesn’t match throughout the house”

Investigator’s Observation: Verified: The blended ceiling paint kitchen / living room and den does not match, leaving a color variation.

Complaint Item 4: “Interior and exterior wall paint is cheap primer, not paint.” (Complainant’s description of the color variations on the interior and exterior walls.)

Investigator’s Observation: Verified: Color variations were observed at the interior in multiple areas, namely in the den and front entry. The exterior walls were observed to have color variation on the north, south, east and west sides.

Complaint Item 5: “Front and garage back doors do not close properly. seals have gaps”

Investigator’s Observation: Verified: The front door was observed to have gaps where day light was visible when the door was in the closed position. The garage back door is missing sections of the weather stripping.

Complaint Item 6: “All glass doors do not lock properly; even though the glass company has been here twice.”

Investigator’s Observation: Verified: The door lock on the west side of the south wall in the den was observed to operate incorrectly.

Complaint Item 8: “Company that Design Tech used for all glass, Columbus Glass, have yet to come back to replace broken gaskets, scratched windows, and “milky residue”. The company knows, but no communication.”

Investigator’s Observation: Verified: Respondent confirmed replacement glass panels have not been installed.

Complaint Item 9: “Metal flashing on exterior roof line, all leaks, gaps, and water is entering, creating water stains, bubbling.”

Investigator’s Observation: Verified: Drywall bubbling and staining was observed on the exterior ceiling cantilevers at the south and east side of the residence.

Complaint Item 10: “Cracks with plaster, in and out of the property (not settlement cracks).”

Investigator’s Observation: Verified: Stucco cracking was observed on the exterior walls throughout the residence.

Complaint Item 11: “Did not complete overspray request from HOA, to get deposit back”. (Complainant’s description of non-completion of the clear coating or painting of the metal trellis.)

Investigator’s Observation: Verified: The trellis was observed to have bare metal with no finish. The respondent confirmed he was aware of the HOA requirement and the finish was not completed.

Complaint Item 14: “All cabinets fronts are cracking. Drawers are not closing properly.”

Investigator’s Observation: Verified: Cracks were observed on the end panels of the kitchen base cabinets on the north side of the west wall and the south side of the island. Drawers in the master closet and master bath were observed to operate incorrectly.

Complaint Item 17: “Metal trellis- front porch. Not completed. Had to pay to someone to fix some slight overspray.”

Investigator’s Observation: Verified: Duplicate of Complaint item 11.

See Agency Record at 134.

Following the issuance of the Written Directive, Respondent performed corrective work and requested additional time in which to complete the items on the Written Directive. On March 26, 2021, Investigator Johndrow contacted Complainant who informed him that the corrective work was not complete. Investigator Johndrow scheduled a Compliance Inspection.

Investigator Johndrow conducted a Compliance Inspection on March 30, 2021, at which both parties were present. Investigator Johndrow’s Compliance Jobsite Inspection Notes indicate the following:

Compliance Findings:

The respondent has not taken appropriate corrective action to comply with the Written Directive.

Governing Rule: A.R.S. § 32-1154 (A) 22: Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

As stated on Directive: Complaint Item 1: “Subfloor in garage, south wall, leaks from exterior - since day 1. He knows, but blames others.”

Investigator’s Observation from initial inspection: Verified: Moisture was observed on the concrete floor of the garage along the south wall. The south wall has moisture damage.

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 2: “Drywall seams cracking and ripping tape/paint”

Investigator’s Observation from initial inspection: Verified: Drywall cracks were observed at the interior, in the garage at the inside corner behind the hinged door, on the north west hallway ceiling and in the kitchen / living room ceiling in multiple areas. A drywall bubble was observed on the ceiling above the kitchen island. Drywall cracks were observed on the exterior ceiling cantilevers at the east and west sides of the residence. Drywall bubbling and blistering was observed on the exterior ceiling cantilever at the east side.

As stated on Directive: Complaint Item 3: “Ceiling paint doesn’t match throughout the house”

Investigator’s Observation from initial inspection: Verified: The blended ceiling paint kitchen / living room and den does not match, leaving a color variation.

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 4: “Interior and exterior wall paint is cheap primer, not paint.” (Complainant’s description of the color variations on the interior and exterior walls.)

Investigator’s Observation from initial inspection: Verified: Color variations were observed at the interior in multiple areas, namely in the den and front entry. The exterior walls were observed to have color variation on the north, south, east and west sides.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. Color variation conditions still exist on the interior and exterior.

As stated on Directive: Complaint Item 5: “Front and garage back doors do not close properly. seals have gaps”

Investigator’s Observation from initial inspection: Verified: The front door was observed to have gaps where day light was visible when the door was in the closed position. The garage back door is missing sections of the weather stripping.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. The garage back door does not make contact with the weather stripping which does not allow for a proper seal.

As stated on Directive: Complaint Item 6: “All glass doors do not lock properly; even though the glass company has been here twice.”

Investigator’s Observation from initial inspection: Verified: The door lock on the west side of the south wall in the den was observed to operate incorrectly.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. The door latch does not operate correctly.

As stated on Directive: Complaint Item 8: “Company that Design Tech used for all glass, Columbus Glass, have yet to come back to replace broken gaskets, scratched windows, and “milky residue”. The company knows, but no communication.”

Investigator’s Observation from initial inspection: Verified: Respondent confirmed replacement glass panels have not been installed.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. Respondent confirmed that not all of the replacement glass panels were installed.

As stated on Directive: Complaint Item 9: “Metal flashing on exterior roof line, all leaks, gaps, and water is entering, creating water stains, bubbling.”

Investigator’s Observation from initial inspection: Verified: Drywall bubbling and staining was observed on the exterior ceiling cantilevers at the south and east side of the residence.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. Bubbling and blisters were not corrected on the east side exterior and cracks were observed on the repaired area on the south east side exterior. It should be noted, the paint touch up, in the areas where corrective ceiling work was performed on the exterior, has color variation.

As stated on Directive: Complaint Item 10: “Cracks with plaster, in and out of the property (not settlement cracks).”

Investigator’s Observation from initial inspection: Verified: Stucco cracking was observed on the exterior walls throughout the residence.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. Stucco cracks were not corrected in all areas.

As stated on Directive: Complaint Item 11: “Did not complete overspray request from HOA, to get deposit back”. (Complainant’s description of non-completion of the clear coating or painting of the metal trellis.)

Investigator’s Observation from initial inspection: Verified: The trellis was observed to have bare metal with no finish. The respondent confirmed he was aware of the HOA requirement and the finish was not completed.

Compliance Inspection Findings for this item: This has been corrected.

As stated on Directive: Complaint Item 14: “All cabinets fronts are cracking. Drawers are not closing properly.”

Investigator’s Observation from initial inspection: Verified: Cracks were observed on the end panels of the kitchen base cabinets on the north side of the west wall and the south side of the island. Drawers in the master closet and master bath were observed to operate incorrectly.

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. Kitchen cabinets corrections were not completed.

As stated on Directive: Complaint Item 17: “Metal trellis- front porch. Not completed. Had to pay to someone to fix some slight overspray.”

Investigator’s Observation from initial inspection: Verified: Duplicate of Complaint item 11.

Compliance Inspection Findings for this item: This has been corrected.

See Agency Record at 181.

Thereafter, Investigator Johndrow forwarded the matter to the Registrar’s Legal Department. 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). See Agency Record at 187.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

Investigator Johndrow testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes. Investigator Johndrow conducted a pre-hearing inspection on June 1, 2021. Respondent did not attend the pre-hearing inspection. Investigator Johndrow testified that between the time of the compliance inspection and the pre-hearing inspection, “conditions re-appeared and worsened.” Specifically, Investigator Johndrow testified that there was an “obvious” difference in the paint colors on the ceiling, the touch-up work performed on the walls “clearly had variation,” and this was a “widespread condition” on every wall, the paint had a “blotchy finish” and there were “runs in the paint.” Investigator Johndrow testified that Respondent’s work did not meet workmanship standards. Investigator Johndrow testified that Respondent had not performed any work since the compliance inspection. Investigator Johndrow further testified that, in his opinion, Respondent was provided more than enough time to complete the Written Directive in light of the fact that Respondent was provided thirty days pursuant to the Written Directive, and an additional eleven days after Respondent requested more time. Investigator Johndrow also testified that Respondent did not begin corrective work until the last week of the Written Directive timeframe.

Complainant testified that Respondent’s work was “not up to par” and that there was “poor attention to detail.” Complainant wants the deficient work remedied but not by Respondent due to a “lack of professionalism.”

Respondent testified that he spent $65,000.00 of his own money on this project, that Respondent is willing to “fix whatever [Complainant] wants but won’t spend any more of his money.” Respondent thereafter asserted that Complainant will never be satisfied and that Respondent “will never go back and has no intention of going back there” and the Registrar is “free to take whatever action.”

Administrative notice is taken of Respondent’s prior License record on June 25, 2021. Such prior License record reflects that Respondent’s License No. 240893 was first issued on April 24, 2008, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled/withdrawn complaints, and no 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 Vazzano 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 further established that Respondent did not complete the corrective work following the Written 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. 240893 for a period of seven (7) 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 (30) 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)(7), 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, June 25, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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