ALJDEC decisions subject to certification as final

2021A-03752-CHC-ROC · Registrar of Contractors · 2022-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Paul David Hernandez,

COMPLAINANT

Alpha Builder LLC

License No. ROC 330221,

RESPONDENT

No. 2021A-03752-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 14, 2022

APPEARANCES: Complainant Paul David Hernandez appeared on his own behalf via Google Meet. Jason Beltran, appeared via Google Meet for Respondent Alpha Builder LLC. Registrar of Contractors Investigator, Gregory Johndrow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Alpha Builder, LLC. (Respondent) is the holder of License No. 330221 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 28, 2021 Paul David Hernandez (Complainant) agreed to have Respondent perform work in his bathrooms and kitchen due to water damage.

On or about August 6, 2021, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project. The Complaint was then amended on August 22, 2021 to included two additional items.

The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on August 31, 2021.

Investigator Johndrow then issued a written directive on or about September 9, 2021, 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 September 27, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Skin coating around the kitchen ceiling lighting is cracking. This was repaired by Alpha Builder and I am being charged for these repairs.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the drywall cracks around the light fixture on the kitchen ceiling.

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.

Complaint Item 2: “Skin coating where kitchen meets the front room ceiling is cracking. This was repaired by Alpha Builder and I am being charged for these repairs.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the drywall cracks where the front room ceiling meets the kitchen.

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.

Complaint Item 9: “Master Bath skim Coat: (where the shower tile ends) Looks like a glob of joint compound was used and it wasn’t sanded down to make a smooth transition from tile to sheetrock wall.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the conditions described.

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.

Complaint Item 10: “Master bath chrome shower trim: painted over very sloppy. The trim should not have any paint on it.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the conditions described.

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.

(All errors contained in the original)

On September 29, 2021, 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about October 14, 2021, Respondent e-mailed an Answer to the Registrar, stating that Complainant halted the job on his own and did not want to pay for additional abatement fees to properly remove asbestos in his home.

On or about December 16, 2021, a Notice of Hearing was issued setting a hearing on January 14, 2022, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.

Investigator Johndrow testified that he believed that 17 days was enough time for Respondent to complete the corrective work. And when he reached out to Complainant on September 28, 2021 for a status update, he was informed that no work had been performed by Respondent.

Investigator Johndrow testified further that while Mr. Beltran sent an e-mail stating some of the noticed areas were not his work, Investigator Johndrow recalled how he specifically questioned Mr. Beltran during the inspection and it was acknowledged as Respondent’s work. Further, while Mr. Beltran acknowledged the same, Investigator Johndrow testified that Mr. Beltran seemed vague as to what work was done by his company.

In addition, Investigator Johndrow testified that a contractor assumes the surface of the area in which they are working so even if another contractor did not properly patch the kitchen ceiling, it was still Respondent’s responsibility to do so once in the course of its work.

Finally, Investigator Johndrow testified that the estimate provided by Respondent to Complainant did not comply with the minimum elements of a contract as it did not provide the estimated date of completion nor the “right to file a complaint with the Registrar” language as required by statute. Investigator Johndrow also testified that he conducted a pre-hearing inspection on January 11, 2022, and everything was still in the same condition per his previous inspection.

Paul David Hernandez testified on his own behalf. He testified that in March 2021, his bathrooms and kitchen suffered water damage. Once the initial remediation was completed, he contracted with Respondent to provide new flooring, cabinets as well as re-painting. He testified that the project was delayed and was unhappy with Respondent’s workers and how they left debris in his front yard.

Mr. Hernandez testified further that he did not hire additional workers until after he terminated Respondent.

Mr. Hernandez also testified that Mr. Beltran did not contact him regarding the written directive until a day after the completion date. Mr. Hernandez testified that he did not extend the date for completion because he did not believe that Mr. Beltran would take him seriously as Mr. Beltran did not take the Registrar’s directive seriously.

In addition, Mr. Hernandez testified that Respondent’s worker, Efran, patched the ceiling so that it could have a skin coat of paint on the same.

Mr. Beltran testified that he has only been paid $4,000.00 on the job and that he performed much work that was not paid for.

Further, Mr. Beltran acknowledged some delays due to the worker shortage, and should have been more upfront with Complainant about the same.

Mr. Beltran also testified that the patch in the kitchen ceiling was already present and they were just hire to sand the area and provide a skin coat. Further, when reviewing the jobsite inspection photographs, Mr. Beltran stated that he did not do the work as shown.

Administrative notice is taken of Respondent’s prior License record on January 24, 2022. Such prior License record reflects that Respondent’s License No. 330221 was first issued on August 23, 2020, and reflects that there was one open complaint, namely the present complaint and one previous complaint for which Respondent was disciplined.

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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The drywall was cracking around the light fixture in the kitchen ceiling, and where the front room meets the ceiling. In addition, the compound used in the master bathroom was not sanded down, and there was paint on the chrome shower trim. 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 preponderance of the evidence established, that the estimates presented did not meet the minimum elements of a contract as there was no estimate time for completion, nor did it contain the “right to file language” in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. While the Tribunal sympathizes with Mr. Beltran as to the worker shortage, it was unacceptable to wait until the day after the directive expired to contact Complainant. 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. 330221 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that Respondent provide an updated contract to the Registrar proving that it complies with A.R.S. §32-1158(A), on or before thirty days following the effective date of the Registrar’s final order.

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 30 days from the date of that certification.

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-137160-45720000Done this day, January 24, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000