ALJDEC decisions subject to certification as final

2021A-02536-CHC-ROC · Registrar of Contractors · 2022-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Matthew David Eastin,

COMPLAINANT

Nathan John Moreno

DBA: 1 Stop Stucco Repair,

License No. ROC 319427,

RESPONDENT

No. 2021A-02536-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 11, 2022

APPEARANCES: Complainant Matthew David Eastin appeared on his own behalf. Respondent Nathan John Morena, doing business as 1 Stop Stucco Repair, appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Nathan John Morena, doing business as 1 Stop Stucco Repair (Respondent) is the holder of License No. 319427 issued by the Arizona Registrar of Contractors (Registrar).

In March 2021, Matthe David Eastin (Complainant) entered into a contract with Respondent for the repair of stucco cracks on the exterior of his home.

On or about June 4, 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 Stephen Lawton. After a jobsite inspection, Investigator Lawton 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 October 1, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Repaired stucco cracks, patched huge spots in a completely different stucco and original was synthetic.

Investigator’s Observation: It was observed that areas of the stucco repair stood out from the rest of the stucco.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Following the issuance of the written directive, Respondent did not perform any additional work on the project. After the deadline in the directive expired, Investigator Lawton was notified no 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; and A.R.S. § 32-1154(A)(22).

Randy Cason, Assistant Chief of Compliance, testified that Investigator Lawton had since retired from the Registrar. Mr. Cason stated that on February 7, 2022, he conducted a prehearing inspection. At that time, Mr. Cason observed no changes on the project from the photographs of the original jobsite inspection.

Complainant testified that he hired Respondent to perform work to repair the cracks in his stucco. Complainant denied

Nathan Moreno testified that he informed Complainant that the stucco repairs would not match the existing stucco and that a corner to corner repair would need to be done to properly address the cracks. Mr. Moreno acknowledged that the color of the repairs did not match, but stated he believed the real issue to be that the texture did not match. Mr. Moreno was not clear on exactly why the texture and color could not match other than one product was synthetic stucco and one was not. Mr. Moreno argued that the Registrar’s workmanship standards were not accurate.

Administrative notice is taken of Respondent’s prior License record on March 2, 2022. Such prior License record reflects that Respondent’s License No. 319427 was first issued on May 2, 2018, and is active. Such prior License record also reflects that there were two open complaints and three resolved/settled complaints 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 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).

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.

The evidence established that Respondent did not attempt to 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 suspend Respondent’s License No. 319427 for a period of three 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 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.

-54864001

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-137160-45720000Done this day, March 2, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000