ALJDEC decisions subject to certification as final
2022A-00503-CHC-ROC · Registrar of Contractors · 2022-08-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Eva M Kelly,
COMPLAINANT
v.
Jesus R Leyva
License No. ROC 199398,
RESPONDENT
No. 2021A-04411-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 22, 2022
APPEARANCES: Complainant Eva M. Kelly appeared on her own behalf. Respondent Jesus R. Leyva appeared via Google Meet on his own behalf. Registrar of Contractors Investigator Mike Springer appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
______________________________________________________________________
FINDINGS OF FACT
Jesus R. Leyva (Respondent) is the holder of License No. 199398 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 22, 2020, Eva M. Kelly (Complainant) signed a contract with Respondent for a house remodel. The contract amount was for $21,418.50.
On or about September 7, 2021, the Registrar received a Complaint containing thirteen items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on September 30, 2021.
Investigator Springer then issued a written directive on or about September 30, 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 October 18th, 2021.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Caulking, Texture & paint throughout rooms chipping peeling & brecking off windows shower stalls & door frames.
Investigator’s Observation: Area in hall bathroom at ceiling wall connection is caulked poorly. Cracks in drywall compound at front window edges. Shower stall to drywall transition is done poorly.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 2 - Back french doors no caulking or paint by hinges around door frame.
Investigator’s Observation: Finishing behind hinges is done poorly.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - Living room window frame gap right hand wider at top -vs- bottom.
Investigator’s Observation: Window is not square in opening. Gap at top of slider is not equal to bottom of slider. Drywall is also covering the window flange completely on left and right sides. There should be an equal reveal around the entire window.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Front bedroom- light switch replaced too close to door frame unable to install switch plate due to trim.
Investigator’s Observation: Light switch in front bedroom is misplaced and too close to trim to allow switch plate. Respondent states he "Screwed that up".
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 6 - 2nd bedroom- texture around bedroom door badly done.
Investigator’s Observation: Texture/Caulking finish is poorly done around door.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - Closet doors not even on bottom, 2" gap on top vs 1/2" on bottom.
Investigator’s Observation: Closet door in front bedroom is either installed incorrectly or needs adjustment. Door is hung crooked.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Door has chipped bottom left hand.
Investigator’s Observation: Closet door is chipped on left side bottom.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 10 - Master bedroom vent has hole, shelves in closet not screwed down, one side not painted.
Investigator’s Observation: Return air vent in master bedroom is loose.
A small hole can be seen through the side.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 12 - (Item added at inspection) - Grout is spilled on tile throughout.
Investigator’s Observation: Grout is on the tile outside the grout lines throughout the home.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
(All errors contained in the original).
On October 28, 2021, Investigator Springer conducted a Compliance Jobsite Inspection. In his notes regarding the same, he commented:
Compliance Jobsite General Notes: Most items have been corrected. Outstanding items listed below.
Compliance Findings:
Compliance Item:- 1 Caulking, Texture & paint throughout rooms chipping peeling & brecking off windows shower stalls & door frames.
Investigator’s Observation: Area over bathroom door, 2nd bedroom window and hall closet are cracked or need paint.
Governing Rule: 32-1154(A)(3)
Compliance Item: - Living room window frame gap right hand wider at top -vs- bottom.
Investigator’s Observation: Window gap was fixed, texture and paint on window sill are not consistent.
Governing Rule: 32-1154(A)(3)
Compliance Item: - 12 Grout is spilled on tile throughout.
Investigator’s Observation: Grout was cleaned up, defective tile found afterward, Respondent stated he would replace.
Governing Rule: 32-1154(A)(3)
(All errors contained in the original)
On November 11, 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.R.S. § 32-1154(A)(12); and A.R.S. § 32-1154(A)(22).
On or about November 16, 2021, Respondent e-mailed an Answer to the Registrar.
On or about December 2, 2021, a Notice of Hearing was issued setting a hearing on January 6, 2022, at the Office of Administrative Hearings, an independent state agency.
The hearing was continued several times and Complainant filed a second complaint (2022A-00503-CHC-ROC) on or about January 14, 2022. That matter was consolidated into the present case.
Investigator Springer conducted a Jobsite Inspection on the second complaint on February 8, 2022, and then issued a written directive on or about March 7, 2022 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 April 10, 2022.
. . .
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - All framing- substandard/uneven/not level: 3 bedrooms, 2 bathrooms, dining/kitchen area.
Investigator’s Observation: Living room, Dining room, Kitchen and Hallway all have bowed walls visible at the floor. The living room West wall has a bow in the middle of the wall that is visible and verified by holding a straight edge against it. Pic 25, 26. Hallway baseboards are crooked the entire length of the hallway. Pics 2, 3,
Wall at front entry door is out of plumb Approx 1 inch and bottom of wall is bowed. Pic 1, 22. 24
S/W Kitchen corner is out of square (ceiling and floor) and West kitchen wall is bowed. Pics 27,28.
Respondent furred out all exterior walls for drywall and framed sections of hallway walls. Contract states "Corrections as needed to framing throughout home" New and old walls should be straight for new drywall installation.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - Drywall- Ceilings; corners, Window openings- not level /crooked (All rooms)
Investigator’s Observation: Front window in living room is out of level approx 1/4 inch from middle to right side. Middle to left side there is a large dip in the window sill. Pics 19, 20, 21.
Ceiling in Kitchen over back door and to the right of door are wavy, not level.
Corner at ceiling in this area is out of plumb at the top where it meets the ceiling. Pic 11, 29.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Texture, sags, drips, cracks, folds, uneven, inconsistent, shoddy and sloppy work. (All rooms)
Investigator’s Observation: In the hallway bathroom, East side of door and along top of door there are drips and runs in the paint or drywall compound. Missing texturing above sink. There are gaps around the top of the shower enclosure, not caulked. The shower enclosure is not installed correctly, East side is not flush with bottom pan. Pics 30, 31, 32, 33,35,36, 37,
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 9 - Paint: uneven application; textured walls rough vs painted smooth areas majority wall throughout.
Investigator’s Observation: Areas in the master bedroom feel like they are not painted, rough feeling compared to other walls. S/W and S walls. Possible overspray or not painted.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 10 - Closet doorframes/doors/crooked, doors bowed; visible unsightly gaps top/bottom 2 bedrooms.
Investigator’s Observation: Bifold doors in 1st bedroom have large gaps at the top of the doors. Door in bedroom 2 is installed crooked, reveal on side is uneven. Pic 44, 45, 46.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 11 - Closet door wrong type (contract states sliding doors) 2 bedrooms.
Investigator’s Observation: Doors in bedroom 2 and 3 are bifold doors.
Contract states sliding doors in both.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 12 - Utility room closet- doors crooked/bowed; visible unsightly gaps top/bottom.
Investigator’s Observation: Door at utility closet has large gap at top of door. Pic 63
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 13 - Closet shelves- (3 bedroom closets/hallway closet) old wood, not painted/finished; no caulking.
Investigator’s Observation: Shelving in closets are melonite and not painted. The support material is unpainted and cracked in some locations. Pics 48, 49, 50, 51, 52, 53, 54, 55, 56,
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 18 - Tile work- improper installation; uneven/not level throughout the house.
Investigator’s Observation: 1 tile in Living room has excessive lippage. I found other tiles around the house but were within standards.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 20 - Missing trim around doorways along hallway, both sides
Investigator’s Observation: Closet doors have trim. Bedroom bathroom doors do not. Industry standard would dictate all doors match.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
(All errors contained in the original).
On May 9, 2022, Investigator Springer conducted a compliance jobsite inspection. In his notes regarding the same, he commented:
Compliance Findings: All items included in the Written Directive remain uncorrected. Respondent stated he could not gain access, Complainant states locks were changed after the written Directive had expired. The following items remain uncorrected.
Compliance Item: 1 - All framing- substandard/uneven/not level: 3 bedrooms, 2 bathrooms, dining/kitchen area.
Investigator’s Observation: Living room, Dining room, Kitchen and Hallway all have bowed walls visible at the floor. The living room West wall has a bow in the middle of the wall that is visible and verified by holding a straight edge against it. Hallway baseboards are crooked the entire length of the hallway. Wall at front entry door is out of plumb Approx 1 inch and bottom of wall is bowed. S/W Kitchen corner is out of square (ceiling and floor) and West kitchen wall is bowed. Respondent furred out all exterior walls for drywall and framed sections of hallway walls. Contract states "Corrections as needed to framing throughout home" New and old walls should be straight for new drywall installation.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - Drywall- Ceilings; corners, Window openings- not level /crooked (All rooms)
Investigator’s Observation: Front window in living room is out of level approx 1/4 inch from middle to right side. Middle to left side there is a large dip in the window sill. Ceiling in Kitchen over back door and to the right of door are wavy, not level. Corner at ceiling in this area is out of plumb at the top where it meets the ceiling.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Texture, sags, drips, cracks, folds, uneven, inconsistent, shoddy and sloppy work. (All rooms)
Investigator’s Observation: In the hallway bathroom, East side of door and along top of door there are drips and runs in the paint or drywall compound. Missing texturing above sink. There are gaps around the top of the shower enclosure, not caulked. The shower enclosure is not installed correctly, East side is not flush with bottom pan.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 9 - Paint: uneven application; textured walls rough vs painted smooth areas majority wall throughout.
Investigator’s Observation: Areas in the master bedroom feel like they are not painted, rough feeling compared to other walls. S/W and S walls. Possible overspray or not painted.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 10 - Closet doorframes/doors/crooked, doors bowed; visible unsightly gaps top/bottom 2 bedrooms.
Investigator’s Observation: Bifold doors in 1st bedroom have large gaps at the top of the doors. Door in bedroom 2 is installed crooked, reveal on side is uneven.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 11 - Closet door wrong type (contract states sliding doors) 2 bedrooms.
Investigator’s Observation: Doors in bedroom 2 and 3 are bifold doors. Contract states sliding doors in both.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 12 - Utility room closet- doors crooked/bowed; visible unsightly gaps top/bottom.
Investigator’s Observation: Door at utility closet has large gap at top of door.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 13 - Closet shelves- (3 bedroom closets/hallway closet) old wood, not painted/finished; no caulking.
Investigator’s Observation: Shelving in closets are melonite and not painted.
The support material is unpainted and cracked in some locations.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 18 - Tile work- improper installation; uneven/not level throughout the house.
Investigator’s Observation: 1 tile in Living room has excessive lippage. I found other tiles around the house but were within standards.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 20 - Missing trim around doorways along hallway, both sides
Investigator’s Observation: Closet doors have trim. Bedroom bathroom doors do not. Industry standard would dictate all doors match.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
(All errors contained in the original).
On May 16, 2022, 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).
On or about May 30, 2022, Respondent filed an Answer with the Registrar of Contractors.
The hearing on both complainants took place on July 22, 2022 at the Office of Administrative Hearings.
At hearing, Investigator Springer testified as to his involvement and the above timeline.
Investigator Springer testified that as to the first complaint, most items were corrected but for the three listed in his compliance jobsite inspection notes. Further, he testified that he believed the time to complete the Directive was reasonable.
As to the second complaint, he testified that items 1, 7, 8, 9, 10, 11, 12, 13, 18, and 20 were not in compliance. Investigator Springer also testified that the parties agreed to a longer time period to complete the Directive items.
Complainant testified on her own behalf, and called Maria Melendez, Carmen Melendez, and Cynthia Gonzalez as witnesses. Further, she offered 5 exhibits into evidence.
Complainant testified that while there were many contractors who met her at her house to discuss the project, only Respondent walked with her room by room. She testified however, that Respondent was not taking notes while performing the walkthrough.
Complainant’s two major concerns were that the walls were not re-framed with 2x4 wood, and that Respondent used “thinset” to level the floors, which she found out later that this was not the appropriate method to complete the same. Complainant also testified that there would be long stretches of time without contact from Respondent. As the project went on, when there was communication, it often turned confrontational. Complainant also testified that as to the remaining balance, she told Respondent he would be paid in full (less $500.00 because the walls were not converted to 2x4), once the project was finished. Complainant testified that once Respondent stated that it was “all or nothing”, she chose to pay nothing further on the contract. Finally, as to the allegation that Complainant denied Respondent access to the house during the second directive period, she testified that Respondent had the house key to make the repairs, and it was not until after the Directive expired when she changed the locks.
Maria Melendez testified that she was present when Complainant hired Respondent. Further, she testified that Respondent agreed to complete the job in 3-4 months.
Carmen Melendez testified that she spoke with the tile installer who informed her that Respondent used “thinset” rather than leveling grout of level out the floor.
Finally, Cynthia Gonzalez testified that Complainant used blue tape to point out the deficiencies to Respondent.
Respondent testified on his own behalf and called Patricia Leyva as a witness.
Respondent testified that it took him longer than expected to complete the job, but when Complainant would pick out every little thing that was wrong, he would not finish. Further, Respondent testified that he did not request additional funds to complete the project, only what was still owed on the contract.
As to the walls, Respondent testified that 2x8 wood was used on the house originally, which made the framing crooked, and if he straightened it out, it would have cost extra. As for the tiles, Respondent admitted he use the “thinset” but argued that this was acceptable to level the floors.
As to the delay in completing the second Directive, Respondent testified that he was really busy with other jobs and did some work but not much on the Directive items.
Patricia Leyva testified that she was present at the initial meeting, and that the parties were in constant communication. She testified that towards the end of the project however, Complainant was nitpicky with little things and that there was always something pointed out as wrong.
Administrative notice is taken of Respondent’s prior License record on August 9, 2022. Such prior License record reflects that Respondent’s License No. 199398 was first issued on August 23, 2004, and reflects that there were 2 open complaints, namely the present complaints.
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).
As there was no testimony provided by Investigator Springer nor Complainant as to the contract between the parties, there was no evidence to establish that Respondent was in violation of A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158.
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Namely, the numerous areas that the caulking was cracked or needed painting; the framing was not level, leading to uneven ceilings, corners and window openings; texture work on the painting was not completed; closet doors were bowed, crooked and had large gaps; the doors in bedrooms 2 and 3 were supposed to be sliding doors rather than bi-folding; and the shelving in the closets were Melonie and not painted. Further, Respondent did not present any evidence that these items were within workmanship 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, and Respondent, admitted that he failed to complete the corrective work following the Directive being issued as to the above items 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. 199398 for a period of ten days.
It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.
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, August 9, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary