ALJDEC - Licensing

2023A-02637-CHC-ROC · Registrar of Contractors · 2023-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tracy Lee Lockhart,

COMPLAINANT

TREJO'S INSTALLATIONS LLC

License No. ROC 336779,

RESPONDENT

No. 2023A-02637-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2023

APPEARANCES: Tracey Lee Lockhart and Riot Lockhart appeared via Google Meet on behalf of Complainant. Respondent Trejo’s Installations LLC was represented by Justin Castillo, Esq. who appeared via Google Meet. Arizona Registrar of Contractors Investigator Mike Springer appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Trejo’s Installations, Inc. (Respondent) is the holder of License No. 336779 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 1, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the construction of a deck at its residence.

The Registrar assigned the complaint to Investigator Arlo Houston. The jobsite inspection was performed on March 21, 2023. In his notes regarding the same, Investigator Houston noted the following:

. . .

Additionally present for the jobsite inspection was William Arnold Wiley, Jr., DBA: J. Wiley Home Improvement and Repair. Wiley admitted to performing work at the property to demolish and rebuild the deck(s) for Lockhart, accepting payment over $999.99 from Lockhart for the building permit required and ROC license required work, and that he was not an ROC licensed contractor.

At the beginning of the jobsite inspection Wiley lied about having an ROC license and fraudulently represented himslf to be a licensed contractor by referencing a fictitious ROC license number on the copy of his business card provided to Lockhart (included with the complaint documents). When Wiley was further and directly questioned at the end of the jobsite inspection as to whether or not he is a licensed contractor he then admitted to not being a licensed contractor.

. . .

(All errors contained in the original).

Investigator Houston then issued a written directive on or about March 23, 2023, 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 18, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

The respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to corrections being made to listed items in this Directive that are building permit required.

Submit an updated version of a contract template to the Registrar that complies with the provisions of A.R.S. § 32-1158

Complaint Item: 1 - "Permit obtained- verified that one was needed."

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-contracted work is out of scope of Respondent’s license

-respondent had subcontracted work to an unlicensed entity/individual: William Arnold Wiley, Jr., DBA: J. Wiley Home Improvement and Repair and that no building permit had been obtained for the complete deck rebuild(s)

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 2 - "Untreated lumber"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-it did not appear there was any wood that was in direct contact with concrete piers/footings or soil/earth;

-contracted work is out of scope of Respondent’s license

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 3 - "Not primed nor painted"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-areas of deck joists not painted

-contracted work is out of scope of Respondent’s license

Governing Rules:

work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 4 - "Unsafe stairs"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-contracted work is out of scope of Respondent’s license

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 5 - "Unfastened decking"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-deck boards loose/poorly secured

-contracted work is out of scope of Respondent’s license

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of

the licensee.

Complaint Item: 6 - "Footers deep enough and use of rebar"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-contracted work is out of scope of Respondent’s license

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 7 - "Enough support beams and size of posts to support weight"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-contracted work is out of scope of Respondent’s license

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 8 - "Water erosion prevention for back deck"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-there were poorly installed railroad ties on the slope above the West side deck with areas of unsightly concrete finishing

-contracted work is out of scope of Respondent’s license

-respondent had subcontracted work to an unlicensed entity/individual: William Arnold Wiley, Jr., DBA: J. Wiley Home Improvement and Repair for this work

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 9 - "Railings secured well enough to be safe"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-contracted work is out of scope of Respondent’s license

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 10 - "Wrong lic. For build"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-the respondent is not appropriately licensed for the scope of work contracted for the deck rebuild(s) and the contracted work is out of scope of Respondent’s license

Governing Rule: Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 11 - "Job well over $1000. ($31000)"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 12 - "Door removed and sealed up properly"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-area of stucco repair to replace door was poorly completed

-contracted work is out of scope of Respondent’s license

-respondent had subcontracted work to an unlicensed entity/individual: William Arnold Wiley, Jr., DBA: J. Wiley Home Improvement and Repair and Repair and that no building permit had been obtained for the area of remodeling where the door was replaced

Governing Rules:

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 14 - "Side deck not done"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-Southwest side deck demolished and no work performed in this area to replace

-contracted work is out of scope of Respondent’s license

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 15 - "Clean up"

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that:

-construction debris left on property

-respondent had subcontracted work to an unlicensed entity/individual: William Arnold Wiley, Jr., DBA: J. Wiley Home Improvement and Repair

Governing Rules:

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.

Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person.

Knowingly contracting beyond the scope of the license or licenses of the licensee.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 13 - "Stucco damage"

Investigator’s Observation: Unverified. Work related to this item corrected by others.

Governing Rule: N/A

Complaint Item: 16 - "Refused to provide receipts"

Investigator’s Observation: Unverified. Statement by complainant which does not contain a workmanship related allegation to observe and report on.

Governing Rule: N/A

(All errors contained in the original)

On April 25, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3) namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(9); A.R.S. § 32-1154(A)(12); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about May 16, 2023 Respondent e-mailed an Answer to the Registrar, denying the allegations in the Citation.

On or about June 5, 2023, a Notice of Hearing was issued setting a hearing on July 21, 2023 at the Office of Administrative Hearings, an independent state agency.

After several continuances, the hearing was held on October 16, 2023.

Investigator Mike Springer testified as to the Registrar’s involvement and the above timeline.

Investigator Springer testified that while reviewing Investigator Houston’s notes, there was no mention of Wiley being a subcontractor, and that it was not typical for this situation to come up.

Riot Lockhart testified first for Complainant and offered one exhibit containing the parties’ text messages into evidence.

Mr. Lockhart testified that Respondent had performed some work on installing doors in his home. When Respondent was completed, Mr. Lockhart inquired as to the construction of a deck. Mr. Lockhart testified that Eddie Trejo met with himself as well as Jesse (Ornelas) and Bill Wiley to discuss what he wanted the deck to look like.

On or about November 21, 2021, Complainant was presented with Estimate 1544 from Respondent outlining the terms and price for the deck. The invoice stated in pertinent part the following:

Trejos Installations llc Has sub-contracted J. Willy Home Improvement to demo and rebuild Back deck/balcony’s. J. Willy will work hand and hand with Robert and Tracy (home Owners) whole Demo and Re build is in process. Trejos Installations Does not set the schedule, order materials Etc. for J. Willy Home Improvement. Trajos Installations Does work with J. Willy By providing any additional laborer’s at no cost to J. Willy through out the Demo and Re buildng process.. J. Willy Home Improvement Assumes all responsibility and all Warrantee’s Related to Demo and re build of balcony’s and decks...We totally entrust J. Willy Home Improvement to do a great job In a safe and practical manner..By following all Industry safety codes, Rules and regulations to complete the job Safety and successfully to industry standards.

(All errors contained in the original).

Mr. Lockhart then testified that he and his wife gave $14,000.00 in cash to Mr. Trejo as and for the down payment, but he did not know if it was ever forwarded on to Mr. Wiley. In addition, Mr. Lockhart testified that on or about February 22, 2022, they paid $13,000.00 to J Wiley for the remaining balance, upon the advice of Mr. Trejo that they would fix any problems which remained with the deck.

Next, Mr. Lockhart testified that the railings where never installed so Mr. Trejo installed the same, but Investigator Houston determined that the installation was incorrect.

Mr. Lockhart was also concerned about the possible loss of value to his home because there was no building permit obtained for the deck.

Finally, Mr. Lockhart acknowledged that Mr. Trejo offered to meet with him and his wife about a potential resolution, and while some proposals were exchanged by both parties, there was no official agreement resolving the matter.

Tracy Lockhart testified that they did not give Mr. Trejo money to give to Mr. Wiley, and that Mr. Trejo was present when they paid the balance because Mr. Trejo stated he would fix any remaining issues.

Respondent offered the testimony of Fernando R. Galindo and Eddie Trejo and offered eight exhibits into evidence.

Mr. Galindo testified that he had been a licensed contractor since 2003, and that Mr. Trejo asked him to bid on repairing Complainant’s deck. Mr. Galindo completed the same, however he was later informed by Mr. Trejo that Complainant chose not to go forward with the work.

Mr. Trejo testified that Complainant asked him about constructing a deck, and he informed Mr. and Mrs. Lockhart that while he did not do that type of work, he would get them in contact with someone who did. That person was Mr. Trejo’s brother-in-law, whom he believed was a licensed contractor. Further, Mr. Trejo testified that while he was present at the initial meeting, he was not negotiating any of the cost or plans.

In addition, Mr. Trejo testified that he took the initial $14,000.00 cash deposit as a carrier for J Wiley because Mrs. Lockhart was not comfortable giving the cash to Jesse. Mr. Trejo testified that he gave the entire amount to Jesse, but that Jesse did not sign a receipt acknowledging that he received the same.

Mr. Trejo also testified that did get involved a few times to help assist with communication as the Lockhart’s were not informed of when J. Wiley was to start work and to mediate various other issues. Mr. Trejo also testified that he had no oversight of J. Wiley’s work.

Further, Mr. Trejo testified that he was to blame for installing the railings free of charge outside of his scope of his license, and that he did not know what the term “subcontractor” meant while he wrote the same on his invoice.

Finally, Mr. Trejo testified that once he found out about the complaint he worked diligently to try to find a resolution which is why he contacted Mr. Galindo to prepare a bid for the corrective work.

Administrative notice was taken of Respondent’s prior License record on October 31, 2023. Such prior License record reflected that Respondent’s License No. 336779 was first issued on February 24, 2022, and reflected that there was one open complaint, namely the present complaint.

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, and there was no dispute from Respondent, that there was no building permit for the project in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that there was untreated lumber, some areas or the deck joists were not painted, the stairs were not fastened correctly, some deck boards were loose or poorly secured, the footers were not deep enough, there was not enough support beams to support the weight of the deck, there were poorly installed railroad ties on the slope above the west side deck with areas of unsightly concrete finishing, the area of stucco repair to replace door was poorly completed, the side deck was not completed, and finally, there was debris left on the property 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 also demonstrated that Mr. Trejo put this agreement together on his letterhead and was acting a general contractor. The tribunal does not find Mr. Trrejo credible that he did not know his brother-in-law was not licensed, or that he did not know what the term “subcontractor” meant. Therefore Complainant has established a violation of A.R.S. § 32-1154(A)(9), and A.R.S. § 32-1154(A)(16).

The preponderance of the evidence established, that the invoice presented did not meet the minimum elements of a contract for this project 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. The evidence established that Mr. Trejo took the Complaint seriously and tried to resolve the matter by hiring Mr. Galindo to prepare an estimate for the repairs. However, the project remained unfinished. 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. 336779 for a period of twenty 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 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 Respondent provide the Registrar with an updated contract that meets the statutory requirements of A.R.S. § 32-1158. If Respondent fails to provide the same to the Registrar 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.

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, October 31, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Tracy Lee Lockhart

[email redacted]

Justin Castillo

[email redacted]

TREJO'S INSTALLATIONS LLC

[email redacted]

By: OAH Staff