ALJDEC - Licensing

2022A-10747-CHC-ROC · Registrar of Contractors · 2023-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

FEP Construction, LLC,

COMPLAINANT,

FELIPON TEAM PLASTERING, LLC

License No. ROC 339628,

RESPONDENT.

No. 2022A-10747-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 23, 2023

APPEARANCES: Frank Pavon appeared on behalf of Complainant FEP Construction, LLC. Respondent Felipon Team Plastering, LLC did not appear. Arizona Registrar of Contractors Investigator Joey Chester appeared as a witness. Homeowners Debra and Rick Carter appeared as witnesses. Spanish Interpreter Maria Teresa Van Dorien was present for the duration of the hearing.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

______________________________________________________________________

FINDINGS OF FACT

Felipon Team Plastering, LLC (“Respondent”) is the holder of License Number 339628 issued by the Arizona Registrar of Contractors (“Registrar”). Jose Escobar is Respondent’s Qualifying Party and a Member of Respondent.

On or about February 24, 2022, FEP Construction, LLC (“Complainant”) contracted with Respondent for Respondent to perform the stucco installation to the exterior of the home located at 13743 South Karimme Avenue in Yuma, Arizona, for which Complainant was the general contractor. The contract price was $15,900.00.

On or about November 28, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Joey Chester. After a December 16, 2022 Jobsite Inspection, Investigator Chester issued a Written Directive to Respondent dated December 22, 2022, 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 January 11, 2023.

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

Complaint Item: The stucco on the exterior wall has begun to deteriorate after closing. We have contacted him so that he can go and fix his work and he has refused to do so.

Investigator’s Observation: On the day of the inspection I examined multiple hairline cracks exceeding 1/16th inch, as well as voids in stucco around the rooftop. Respondent should determine cause of crack[s] and fix by appropriate means.

All errors in original.

Following the issuance of the Written Directive, Investigator Chester ascertained that Respondent did not perform any corrective work. Consequently, a Compliance Inspection was not conducted.

Thereafter, Investigator Chester 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).

Respondent filed a timely Answer to the Citation, and the Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing was scheduled to convene on March 22, 2023, at 9:00 a.m. On the date and time set for hearing, Frank Pavon appeared on behalf of Complainant. Felipe Escobar appeared on behalf of Respondent. Mr. Escobar’s son, Noises Valencia, was also present. Investigator Chester was present. Homeowners Debra and Rick Carter appeared as witnesses.

During a prehearing discussion, it was determined that Mr. Escobar required the assistance of a Spanish interpreter. The Office of Administrative Hearings attempted to secure an interpreter at the time of hearing, however, due to the lack of notice, an interpreter was not available. Consequently, the hearing was continued in order to secure the services of a Spanish interpreter for Mr. Escobar.

On March 23, 2023, the undersigned issued to the parties a Minute Entry Granting Continuance and Setting Hearing Via Google Meet (“Minute Entry”), advising the parties that the continued hearing would convene on May 23, 2023, at 1:00 p.m. The Minute Entry further provided the Google Meet link to join the continued hearing by video or by telephone. The Minute Entry was sent to Respondent’s email address of record, [email redacted].

On May 23, 2023, at 1:00 p.m., Mr. Pavon appeared on behalf of Complainant. Investigator Chester as present, as well as Rick and Debra Carter. Spanish Interpreter Maria Teresa Van Dorien was present for the duration of the hearing. 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 Chester testified consistently with his findings contained in the Written Directive and his Jobsite Inspection Notes. Investigator Chester testified that he examined the complete exterior of the home and observed cracking that exceeded Registrar standards throughout, as well as “chunks” of missing stucco. During his testimony, Investigator Chester referenced the photographs he took during the Jobsite Inspection depicting Respondent’s workmanship deficiencies.

Mr. Pavon concurred with Investigator Chester’s testimony and testified that Respondent did not apply enough stucco at the corners and that Respondent would not respond to his requests to repair the deficient work.

Administrative notice is taken of Respondent’s prior License record on May 25, 2023. Such prior License record reflects that Respondent’s License Number 339628 was first issued on July 22, 2022, and is active. 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.

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.”

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 and that valid justification for such failure did not exist. 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 Number 339628 for a period of five (5) 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, May 30, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Joey Chester

[email redacted]

FELIPON TEAM PLASTERING, LLC

[email redacted]

FEP Construction, LLC

[email redacted]

By: OAH Staff