ALJDEC decisions subject to certification as final

2021A-02517-CHC-ROC · Registrar of Contractors · 2021-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martha Guadalupe Mondaca De Audelo,

COMPLAINANT

Valencia Quintana LLC

DBA: Piedralaja Builders,

License No. ROC 223056,

RESPONDENT

No. 2021A-02517-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2021

APPEARANCES: Complainant Martha Guadalupe Mondaca De Audelo appeared on her own behalf. Ricardo Valencia, Owner and Qualifying Party, appeared on behalf of Respondent Valencia Quintana LLC, doing business as Piedralaja Builders.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Valencia Quintana LLC, doing business as Piedralaja Builders (Respondent) is the holder of License No. 223056 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 20, 2019, Martha Guadalupe Mondaca De Audelo (Complainant) entered into a verbal agreement with Respondent for the installation of rain gutters and concrete work.

On or about June 7, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Greg 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 August 10, 2021.

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 reasons1, 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: “Piedralaja Builders” owned by Ricardo and Rodrigo Valencia were paid in full on 04/08/2020 for home improvement services that were not completed. Concrete work and water gutter installation. Multiple attempts to contact them have been made but the job is yet to be completed. A civil complaint was made to the courts to request a refund of the amount paid and the courts passed judgement in the sum that was paid.”

Investigator’s Observation: Verified as the responsibility of the respondent: The Respondent acknowledged the concrete work was not performed as per the oral agreement between parties and the gutter installation is of poor quality and requires corrective work to meet industry standards. It should also be noted the Respondent stated they are able and willing to resolve the allegation listed in the complaint.

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 the project. After the deadline in the directive expired, Investigator Johndrow was notified not all of the corrective work had been performed.

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.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Johndrow testified that the gutter connection was leaking. Investigator Johndrow also noted that the concrete at the front and side of the residence had not been addressed. Investigator Johndrow stated that the Registrar’s records indicated that Respondent’s license was revoked on October 19, 2021, and had 17 prior complainants filed against it, of which 13 resulted in discipline, 3 were settled, and 1 remained open.

Laura Audelo, Complainant’s daughter, testified to her knowledge of the project as she assisted Complainant with this matter. Ms. Audelo stated that Complainant understood Respondent was going to do a concrete overlay to correct issues with the concrete at the front and side of the house.

David Audelo, Complainant’s son, also testified as to his knowledge of the project. Specifically, Mr. Audelo stated that Respondent was permitted to perform the corrective work prior to the deadline in the directive.

Rodrigo Valencia, Sales and Project Manager, testified that the original agreement was that Respondent would install gutters on the front and rear of the house and would resurface three slabs of concrete. Mr. Valencia stated that Respondent was unable to find people that could go in to do the job after the directive was issued.

Ricardo Valencia, Owner and Qualifying Party, stated that he told Complainant to call if she had any leaks and he never got a call.

Respondent acknowledged that the confusion over the concrete overlay or refinishing would have been easily resolved if Respondent had a written contract with Complainant.

Administrative notice is taken of Respondent’s prior License record on December 6, 2021. Such prior License record reflects that Respondent’s License No. 223056 was first issued on October 19, 2006, and was revoked on October 19, 2021. Such prior License record also reflects that there were no other open complaints, six complaints resulting in discipline, and four complaints that were resolved or settled.

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).

Whether the agreement of the parties was the concrete was to be resurfaced or overlaid, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards in that Respondent failed to do either to the concrete at the front and side of the house. Further, the rain gutters were leaking. 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 have a written contract with Complainant including the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not 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 revoke Respondent’s License No. 223056.

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.

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-137160-45720000Done this day, December 6, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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