ALJDEC decisions subject to certification as final

2021A-04056-CHC-ROC · Registrar of Contractors · 2022-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Matt Bisenius,

COMPLAINANT

Rafael Martinez Gallardo

DBA: Yuriria Contracting,

License No. ROC 299500,

RESPONDENT

No. 2021A-04056-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 14, 2022

APPEARANCES: Complainant Matt Bisenius appeared on his own behalf. Respondent Rafael Martinez Gallardo appeared on behalf of Yuriria Contracting. Arizona Registrar of Contractors Investigator Randy Cason appeared as a witness. Interpreter Gabby Contreras provided interpretation services.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Rafael Martinez Gallardo, doing business as Yuriria Contracting (“Respondent”), is the holder of License No. 299500 issued by the Arizona Registrar of Contractors (“Registrar”).

In May 2021, Matt Bisenius (“Complainant”) hired Yuriria Contracting & Landscaping through an individual named Juan Martinez (“Martinez”), to perform concrete work at Complainant’s home. Complainant obtained Martinez’s information from an advertisement that had been placed on Complainant’s door. The advertisement contained License Number 299500, which belongs to Respondent, and the telephone phone number 623-693-2431. The agreed upon price for the work was $6,300.00. Complainant paid Martinez $6,650.00.

On or about August 20, 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 September 28, 2021 jobsite inspection, Investigator Lawton issued a November 4, 2021 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 November 24, 2021.

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

Complaint Item 1: Spalling and pitting of concrete in multiple locations.

Investigator’s Observation: It was observed and verified that there is spalling and pitting of the concrete in various areas.

Complaint Item 2: Ponding and standing water occurs in multiple locations on concrete.

Investigator’s Observation: It was observed and verified that there is ponding and standing water at multiple locations.

Complaint Item 3: Uneven and wavy concrete in multiple locations.

Investigator’s Observation: It was observed and verified of uneven and wavy concrete.

Complaint Item 4: Excessive grade/slope on concrete in multiple locations.

Investigator’s Observation: It was observed and verified excessive grade/slope on concrete in multiple locations.

Complaint Item 5: Unsightly finish on all areas of concrete

Investigator’s Observation: It was observed and verified unsightly finish on all areas of concrete.

Complaint Item 6: Cracking of concrete in multiple locations

Investigator’s Observation: It was observed and verified that there is compound cracking in the slab.

Complaint Item 7: Different elevations between existing and new concrete slabs.

Investigator’s Observation: It was observed and verified of different elevations between the existing and new concrete.

All errors in original.

After the expiration of the time period in which to perform corrective work, Investigator Lawton contacted Complainant and was informed that Respondent had not performed the required corrective work. Thereafter, Investigator Lawton 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) .

On February 9, 2022, Investigator Randy Cason, having taken over the investigation from Investigator Lawton, conducted a prehearing inspection, and found that the condition of the project had not changed since the jobsite inspection. Investigator Cason testified that at the time of the prehearing inspection, he discussed with Complainant that it appeared that Complainant contracted with an unlicensed entity that was using Respondent’s contracting license number. Investigator Cason ascertained from Complainant that all three payments were made via check and were written to Martinez personally. Investigator Cason testified that he inquired of Investigator Lawton as to why he referred the matter to the Registrar’s Legal Department and was advised that Investigator Lawton had waited for Respondent to respond to his inquiry as to whether Martinez was an employee of Respondent at the time of the contract and performance of the work, and because Investigator Lawton did not receive a response from Respondent, he moved forward with the Complaint.

Complainant testified regarding the advertisement and his contact with Martinez. Complainant explained that he called the telephone number printed on the advertisement and spoke with Martinez who visited Complainant’s home on May 13, 2021. Martinez gave Complainant a price of $6,000.00 to perform the work. On June 6, 2021, Martinez poured the concrete. On June 4 and 7, 2021, Complainant wrote two checks each in the amount of $3,150.00 to Martinez. Thereafter, Complainant wrote a third check in the amount of $350.00 to Martinez in order for him to repair his deficient work.

Complainant testified that between June 9, 2021 and August 30, 2021, Complainant exchanged text messages and phone calls with Martinez in an effort to have him repair his poor workmanship. Complainant testified that on July 17, 2021, he filed a Building Confidence request with the Registrar and Investigator Chris Fultz performed an inspection of the work. Complainant testified that Investigator Fultz recommended that he file a complaint with the Registrar.

Complainant testified that after he filed the Complaint with the Registrar, Rafael Martinez came to look at the work on September 10, 2021. Complainant acknowledged that this was the first time that he had met Rafael Martinez.

Rafael Martinez testified that he did not contract with Complainant and does not know him. Rafael Martinez further testified that he has known Martinez for 30 years, that they were friends, that Martinez has always worked in landscaping, that Martinez worked for Respondent for only two months, and the last time Martinez worked for Respondent was in December 2019, when they parted ways because Respondent was not satisfied with Martinez’s work.

Rafael Martinez submitted a statement that was read into the record that indicates that the telephone number that Complainant contacted belongs to Martinez, not Respondent. Rafael Martinez asserted that it appears that Martinez was using Respondent’s license number without Respondent’s knowledge or permission, and that Martinez obtained Respondent’s license number from Respondent’s business cards.

Administrative notice is taken of Respondent’s prior License record on February 24, 2022. Such prior License record reflects that Respondent’s License No. 299500 was first issued on August 19, 2015, and is active. Rafael Martinez Gallardo is named as Respondent Qualifying Party and owner, and the entity is a sole proprietorship. The business telephone phone number is listed as 602-618-8036. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, while Investigator Lawton found that the work performed did not meet the Registrar’s standards, the credible, probative, and substantial evidence of record established that Respondent is not responsible for such defective work. The evidence established that Complainant contracted with an unlicensed individual, Martinez, who was using Respondent’s license number without Respondent’s knowledge or permission. The name on the advertisement is “Yuriria Contracting & Landscaping,” while Respondent’s name is “Yuriria Contracting.” Further, the telephone number used by Complainant to contact Martinez is different from Respondent’s business telephone number, and Complainant acknowledged that he had never met Rafael Martinez until after he contacted the Registrar. Most probative is the fact that all checks were written to Martinez personally. Therefore, Complainant failed to establish 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, and 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

It is recommended that the Registrar dismiss Complaint Number 2021-04056 against Respondent.

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, February 24, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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