ALJDEC decisions subject to certification as final
2021A-03363-CHC-ROC-RHG · Registrar of Contractors · 2022-03-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Samantha Mercedes Leyvas,
COMPLAINANT,
v.
R&R General Contracting, LLC
License No. ROC 326461,
RESPONDENT.
No. 2021A-03363-CHC-ROC-RHG
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 3, 2022
APPEARANCES: Complainant Samantha Mercedes Leyvas appeared on behalf of herself. Rafael Leyva appeared on behalf of Respondent R&R General Contracting, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent R&R General Contracting, LLC (R&R) holds license number 326461 issued by the Registrar of Contractors (ROC).
2. Rafael Leyva is the qualifying party for R&R.
3. On or about January 29, 2021, Complainant Samantha Mercedes Leyvas and R&R entered into a construction contract wherein R&R would build a new home for Ms. Leyvas.
4. On or about July 13, 2021, R&R began work. On or about July 16, 2021, R&R stopped work.
5. On or about July 20, 2021, Ms. Leyvas filed a complaint with the ROC alleging poor workmanship on the part of R&R.
6. On August 23, 2021, ROC Investigator Steven Hammons conducted a job-site inspection.
7. On August 23, 2021, the ROC issued a Directive to R&R. Through the Directive, the ROC directed R&R to correct complaint items 1, 2, and 3 by appropriate means, no later than 5:00 p.m., on September 9, 2021. The Directive provided, in relevant part, as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “This is a new home build and the builder didn't have a builder warranty only a home warranty. The house and land are not graded properly; water came into the house during a monsoon storm.”
Investigator’s Observation: This allegation is verified. The complainant pointed out and showed me the north side of the home to have an improper grade. The grade is higher than the residence and slopes to the home as opposed to away from the home per code. The soil and rock is even with the bottom edge of the home in areas, where code requires 4 inch spacing between them. The lot should drain from the home. Reference Pictures: 2-11, 20-22
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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.
Complaint Item 2: “The house now has water damage in the walls and cabinets from the monsoon storm.”
Investigator’s Observation: This allegation is verified. The complainant pointed out and showed me areas inside the home to have discoloration at the base of the drywall and tile, behind the stove, and behind the fridge, as well as in the room with the side door exit. I observed the areas to have raised bubbled areas from the water damage as well as discolored base board and door trim. Reference Pictures: 12-19
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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.
Complaint Item 3: “There's no drainage system, water keeps puddling against the house.” Investigator’s Observation: This allegation is verified. Duplicate issue, same as Complaint number one.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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.
8. On September 15, 2021, Investigator Hammons conducted a job-site compliance inspection. Investigator Hammons observed that R&R had not corrected the items listed in the Directive.
9. On September 20, 2021, the ROC issued a Citation against the license of R&R. Through the Directive, the ROC alleged that R&R may have violated Arizona Revised Statutes (A.R.S) § 32-1154(A)(3), Arizona Administrative Code (A.A.C.) R4-109-8(a), and A.R.S. § 32-1154(A)(22).
10. R&R filed an answer to the Citation. See the ROC’s administrative record, pg. 86. In its response, R&R admitted that it failed to install an adequate storm drain. R&R also stated that it could provide a retaining wall and an appropriate grading if given the opportunity. See id.
11. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
12. On January 26, 2022, the ROC issued a Notice of Hearing, setting a hearing before the OAH on March 3, 2022, at 9:00 a.m.
13. A hearing was held on March 3, 2022.
14. At hearing, Investigator Hammons testified regarding his investigation of the complaint and the issuance of the Directive.
15. Ms. Leyvas testified on behalf of herself and agreed with Investigator Hammons’s findings of poor workmanship on the part of R&R.
16. Mr. Leyva explained that he could not find a company with equipment that was large enough to correct the problem. Mr. Leyva expressed a desire to correct his work.
17. Administrative notice is taken of R&R’s prior License record on March 22, 2022. Such prior License record reflects that license number 326461 was first issued to R&R on October 7, 2010, and is current. Such prior License record that there is one open complaint against License No. 326461.
CONCLUSIONS OF LAW
The ROC has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the ROC to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the ROC, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
3. The Administrative Law Judge may consider the ROC’s administrative
record. See A.A.C. § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work did not comply with the ROC’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
5. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 326461 of R&R General Contracting, LLC shall be suspended for a period of three days.
It is further recommended that the ROC 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 ROC’s Order, the ROC 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 days from the date of that certification.
Done this day, March 22, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors