ALJDEC decisions subject to certification as final

2021A-02741-CHC-ROC · Registrar of Contractors · 2021-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rita M. Stiller,

COMPLAINANT

Luis Edgardo Magana Magana

DBA: J & L Plastering,

License No. ROC 313882,

RESPONDENT

No. 2021A-02741-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 25, 2021

APPEARANCES: Complainant Rita Stiller appeared on her own behalf. Respondent Luis Edgardo Magana Magana, doing business as J & L Plastering did not appear. Investigator Cliff Corlett was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Luis Edgardo Magana Magana, doing business as J & L Plastering (“Respondent”), is the holder of License No. 313882 issued by the Arizona Registrar of Contractors (“Registrar”).

Rita Stiller (“Complainant”) contracted with general contractor BCLD, LLC (“BCLD”) for the construction of a single family home. Respondent was hired by BCLD to perform the stucco work for the project.

On or about June 17, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the stucco work on the project.

The Registrar assigned the Complaint to Investigator Cliff Corlett.

On June 21, 2021, Investigator Corlett received correspondence from Respondent that Respondent did not contract to perform the stucco work, but rather was an hourly worker who was paid cash by BCLD.

On June 22, 2021, Investigator Corlett had a phone conversation with Roger Nelson, the individual associated with BCLD, who informed Investigator Corlett that BCLD contracted with Respondent to perform the stucco work for the project, and BCLD paid Respondent by check.

After a June 30, 2021 Jobsite Inspection, Investigator Corlett 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 or before Aug 12, 2021.

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

Compliance Item: 1 - Stucco over sanded, had 3 samples tested by experts and have confirmation of such for 2 out of 3 samples tested.

Investigator’s Observation: Complainants lab testing indicated that 2 of 3 stucco areas tested were over sanded per manufacturers specification.

Complainant did not indicate why those three areas were selected for testing. Respondent should properly correct the areas that did not pass inspection testing. Respondent should properly correct any other areas that the Complainant may prove do not meet manufacturers installation requirements.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS MATCHING SURROUNDING AREAS AS CLOSELY AS POSSIBLE.

Compliance Item: 3 - Overspray on front door and vinyl windows and screens.

Investigator’s Observation: Overspray on front door and vinyl windows and screens confirmed.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 4 - Stucco on window flanges.

Investigator’s Observation: Stucco/color coat on window flanges confirmed.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 5 - Synthetic coating blocking window weep vents.

Investigator’s Observation: Blocked vents confirmed.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Stucco cracked around all doors and garage windows.

Investigator’s Observation: Cracks at door and window corners are typical (normal). Stucco cracks less than 1/16-inch do not require any action on the part of the contractor.

NO CONTRACTOR ACTION REQUIRED.

All errors in original.

On July 16, 2021, Investigator Corlett received a call from Respondent who told Investigator Corlett that Respondent did not contract for the project, was only present on the jobsite for two days performing “labor only” and that Respondent’s trucks were on site containing Respondent’s information for advertising purposes.

On July 22, 2021, Complainant emailed Investigator Corlett disputing Respondent’s assertions, and contending that Respondent performed the stucco work.

On August 19, 2021, Investigator Corlett issued Compliance Jobsite General Notes that stated the following:

Compliance Jobsite General Notes: The Registrar of Contractors issued a Written Directive on case 2021-02741 on July 13, 2021. That Directive instructed the Respondent to make certain corrections to the plaster work at the Complainant residence located at: 2081 E. Ethans Way Mohave Valley, AZ. 86440. That same directive contained a compliance due date of Aug 12, 2021.

Respondent has sent in a response stating he did not contract the project and is not responsible. Complainant has refuted that claim with a written statement that Respondent did the project and made oral statements to her that he would make the necessary corrections.

Complainant was contacted by phone on 8/19/21 and confirmed that Respondent has made no corerections nor contacted the Complinant to schedule repairs.

Compliance Findings: Respondent is NOT IN COMPLIANCE

Compliance Item: - #1. Stucco over sanded. #3. Overspray on doors and window screens. # 4. Stucco on window flanges. #5. Synthetic coating blocking window weep screeds

Investigator’s Observation: The Registrar’s Written Directive dated 7/13/21 directed the Respondent to properly correct complaint items # 1, 3, 4 & 5 on or before 8/112/21.

Respondent has not corrected any of the directed items nor mad any contact with the Complainant.

Governing Rule: ARS 32-1154-A, 22.

All errors in original.

Thereafter, Investigator Corlett 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).

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

The hearing of this matter was scheduled to convene on October 25, 2021, at 9:00 a.m. On the date and at the time set for hearing, Complainant appeared on her own behalf. Investigator Corlett was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Corlett testified consistently with his findings contained in the Written Directive and the Compliance Jobsite General Notes, as well as the above-delineated findings of fact.

Complainant testified that toward the end of October or the first week of November 2020, she reached out to Respondent via text to discuss the issues with the stucco, and Respondent met Complainant at her home. Complainant submitted into evidence screenshots of her texts with Respondent. See Complainant’s Exhibit 1. Respondent’s reply to Complainant regarding the work was, “[h]i yes sorry I’ve been busy, just let me know when you are ready.” Id. Complainant testified that Respondent expressed that he was going to charge Complainant for repairs to Respondent’s own work. Complainant testified that she thereafter hired another stucco contractor to repair Respondent’s poor work. The repairs were put on hold to determine what was causing the crumbling of the stucco. It was determined that the stucco was crumbling because it was over-sanded. See Complainant’s Exhibit 2.

Administrative notice is taken of Respondent’s prior License record on November 5, 2021. Such prior License record reflects that Respondent’s License No. 313882 was first issued on June 14, 2017, and is suspended since July 1, 2021 for non-renewal. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled 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 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(a).

The evidence 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. 313882 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, November 9, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000