ALJDEC - Licensing
2023A-06461-CHC-ROC · Registrar of Contractors · 2023-11-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Frank A. Reda,
COMPLAINANT
v.
Victory Contracting LLC
License No. ROC 321316,
RESPONDENT
No. 2023A-06461-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 23, 2023
APPEARANCES: Complainant Frank A. Reda appeared via Google Meet on his own behalf. Melaquias Jose Sandoval appeared via Google Meet on behalf of Respondent Victory Contracting LLC. Registrar of Contractors Investigator Albert Bernal appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Victory Contracting LLC. (Respondent) is the holder of License No. 321316 issued by the Arizona Registrar of Contractors (Registrar).
On or about April 22, 2022, Frank A. Reda (Complainant) agreed to have Respondent install Travertine tile in his backyard. The total contracted price was $47,016.00.
On or about June 6, 2023, the Registrar received a Complaint containing ten items against Respondent from Complainant alleging that Travertine tile was stained white.
The Registrar assigned the complaint to Investigator Albert Bernal. The jobsite inspection was performed on July 12, 2023.
Investigator Bernal then issued a written directive on or about July 14, 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 August 4th, 2023.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 3 - Travertine installed turned white after acrylic sealer was applied.
Investigator’s Observation: I was shown the travertine pool deck, covered patio, and walkway areas in the backyard, and I noted that a residue white in color was present on top of several areas of the travertine pavers’ deck surface.
Remove white residue from pavers’ surface.
Respondent shall correct by the appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 1 - Bottom of the pool stained
Investigator’s Observation: Complaint item was resolved before this JSI.
Governing Rule: N/A
Compliance Item: 2 - I was not reimbursed for cleaning and start up chemicals
Investigator’s Observation: This statement represents a money dispute and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule: N/A
(All errors contained in the original).
On August 11, 2023, 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)(16); and A.R.S. § 32-1154(A)(22).
On or about August 25, 2023, Respondent timely filed an Answer to the Registrar.
On or about September 7, 2023, a Notice of Hearing was issued setting a hearing on October 23, 2023, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Bernal testified as to the Registrar’s involvement and the above timeline.
Investigator Bernal testified that he observed that a majority of the installed Travertine tile had white staining on it. Investigator Bernal testified that Respondent did not complete the corrective work as per the Written Directive.
Further, Investigator Bernal testified that he issued a Warning Letter on August 9, 2023, to Respondent as it appeared that Respondent was operating beyond the scope of his CR-36 Plastering License.
Complainant testified on his own behalf and offered 11 exhibits into evidence. Complainant testified that acrylic sealant was applied to the tile and it turned white. Further, Complainant testified that he had a few different companies out to the property to examine and the try to remedy the white staining. Complainant testified that while some remedies appeared to work, the white staining would reappear after a few days.
In addition, Complainant testified that once the Directive was issued, Mr. Sandoval said he would be out to the property to try to fix the issue however, his license was temporarily suspended so he could not complete the repair work.
Melaquias Jose Sandoval testified for Respondent. Mr. Sandoval testified that when the sealant was initially applied, he wanted to wait due to the recent monsoon storms, but Complainant did not wish to delay the application. Mr. Sandoval acknowledged, that he should have known better, and believed that this could be the reason for the white staining, as he has used the same staining before on other projects with no problems.
As to the license issues, Mr. Sandoval was unsure why the Registrar filed the Citation under his plastering license when he had a valid floor covering license. Mr. Sandoval also testified that he believed that there was a time when both licenses were suspended due to not timely renewing the same. However, both licenses were presently active.
Administrative notice was taken of Respondent’s prior License record on November 7, 2023. Such prior License record reflected that Respondent’s License No. 321316 (CR-36 Plastering), was first issued on July 27, 2018, was currently suspended as of July 18, 2023 for a lack of bond, and reflected that there was one open complaint, namely the present complaint. Respondent’s License No. 318471 (CR-8 Floor Covering), was first issued on March 14, 2018 and had no disciplinary actions.
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. There was no dispute that there was white staining on the Travertine tile, and despite Mr. Sandoval’s best efforts to correct the same prior to the Complaint, the tile remained stained. Further, Mr. Sandoval admitted that the staining most likely was caused by applying the sealant when the weather conditions were not conducive. 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).
As to contracting outside the scope of his license, the Tribunal finds that Respondent had a valid CR-8 Floor Covering license during the project therefore, there was no violation of A.R.S. § 32-1154(A)(16).
The evidence established Respondent failed to complete the corrective work following the Directive being issued. Even if Respondent’s licenses were suspended for a “clerical error” of failing to complete the renewal, it was still Respondent’s responsibility to ensure that its licenses were renewed. 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. 321316 for a period of five 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.
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, November 7, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Frank A. Reda
[email redacted]
Victory Contracting LLC
PO Box 52214
Mesa, AZ 85208
[email redacted]
By: OAH Staff