ALJDEC - Licensing
2023A-13971-CHC-ROC · Registrar of Contractors · 2024-06-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Felipe Estrada Jr.,
COMPLAINANT,
v.
Rhino Construction and Development, LLC
License No. ROC 320564,
RESPONDENT.
No. 2023A-13971-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 4, 2024
APPEARANCES: Complainant Felipe Estrada, Jr. appeared on his own behalf. Alfonso Sandoval appeared on behalf of Respondent Rhino Construction and Development, LLC. Arizona Registrar of Contractors Investigator Cliff Corlett appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record
FINDINGS OF FACT
Rhino Construction and Development, LLC (“Respondent”) is the holder of License Number 320564 issued by the Arizona Registrar of Contractors (“Registrar”).
On or September 4, 2019, Felipe Estrada, Jr. (“Complainant”) contracted with Respondent for the construction of his home. The contract price was $310,000.00. The close of escrow was January 21, 2022.
On or about December 7, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Cliff Corlett. After a January 6, 2024 Jobsite Inspection, at which both parties were present, Investigator Corlett issued a Written Directive to Respondent dated February 12, 2024, 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 or before March 8, 2024.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - Stucco falling apart/cracking on parapet roof & separating from walls.
Investigator’s Observation: Numerous stucco cracks were noted. The Workmanship Standards for Licensed Contractors (WSLC) stares that: Stucco cracks in excess of 1/16-inch or excessive hairline cracking is unacceptable and the contractor should correct by appropriate methods.
RESPONDENT SHOULD PROPERLY CORRECT ALL STUCCO CRACKS
MEETING OR EXCEEDING THIS STANDARD MATCHING THE SURROUNDING AREA AS CLOSLEY AS POSSIBLE.
Compliance Item: 4 - Bearing wall not finishing, no stucco didn’t fill wall or cap. (Paid extra)
Investigator’s Observation: Property line masonry retaining wall construction completed by H/O.
RESPONDENT SHOULD PROPERLY APPLY THE CONTRACTED STUCCO FINISH.
Compliance Item: 6 - Fireplace not installed.
Investigator’s Observation: August 30, 2019 contract states that:
"All construction as per plans". The plans show a fireplace.
RESPONDENT SHOULD PROPERLY PROVIDE AD INSTALL THE FIRE
PLACE AS ON THE PLANS.
Compliance Item: 7 - Kitchen and bedroom windows leaking.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY DETERMINE CAUSE AND CORRECT HE LEAKS AT THE WINDOWS.
Compliance Item: 9 - Didn’t caulk thresholds.
Investigator’s Observation: The WSLC states that: water should not leak UNDER door thresholds.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
Compliance Item: 13 - Didn’t finish closets & barn doors.
Investigator’s Observation: Closet / barn doors do not have the typical bottom guides installed and the hanging tracks are loose, sagging.
RESPONDENT SHOULD CORRECT BY APPROPIATE METHODS.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 1 - Need to paint house, white calcium stained stucco.
Investigator’s Observation: House stucco appears to be a typical cementious color coat. Cementious color coats are prone to color variations and efflorescence. This is more noticeable on the darker colors.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 3 - 2nd paint coating on interior garages missing.
Investigator’s Observation: The issues with the garage ceiling is not paint but drywall "flash" which is a typical drywall condition exaggerated by viewing at extreme angles and with excess lighting shining across the surface.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 5 - Driveway two tone and cracks (Paid Xtra $1,500.00
Investigator’s Observation: Concrete drive was to be adobe colored concrete. Appears batch plant may have been lite on adding color. This would be beyond the control of the Respondent. The Complainant may be due some compensation however the ROC has no jurisdiction to required monetary settlements.
CRACKS: The WSLC states that cracks in excess of 3/32-inches and or compound cracks that exceed 1/8-inch in vertical displacement are unacceptable. The affected areas are to be replaced.
No cracking was noted to meet or exceed the standards.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 8 - Didn’t caulk around all garage doors.
Investigator’s Observation: Calking around garage door weather-strip not required.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 10 - Didn’t clean landscape of plaster and debris.
Investigator’s Observation: Debris cleaned up prior to onsite meeting.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 11 - Ceiling beams ordered 16’ vs. 20’. (Paid $800.00
extra).
Investigator’s Observation: Living room faux peel pole beams all appeared to be two piece /spliced. No plans or other documentation to support allegations regarding 20-ft instead of two piece beams.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 12 - No credit for no flooring / installed (Polished floors by me).
Investigator’s Observation: The ROC has no authority to settle financial disputes. If the parties cannot resolve this issue then they may wish to seek relief in another forum.
Compliance Item: 14 - Rhino Construction faltered 3 times on contracts. Dates.
Investigator’s Observation: Not a specific workmanship issue.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 15 - My bank needed a new contract because of the faltered date on last contract or I would lose 3% loan.
Investigator’s Observation: Not a specific workmanship issue.
NO CONTRACTOR ACTION REQUIRED.
Compliance Item: 16 - Met with Rhino end of January 2022 at the title company to sign quick contract
Investigator’s Observation: Not a specific workmanship issue.
NO CONTRACTOR ACTION REQUIRED.
All errors in original.
On March 8, 2024, Investigator Corlett received an email from Complainant stating that Respondent had not performed any corrective work and that the parties had not agreed to a monetary settlement.
Investigator Corlett forwarded the Complaint 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).
Investigator Corlett testified consistently with the findings contained in his Jobsite Inspection Notes and the Written Directive. Investigator Corlett testified that there were no allegations of denial of access. Investigator Corlett testified that there were several emails between the parties that are contained in the Administrative Record. The email correspondence begins on February 17, 2024, from Respondent to Complainant. On February 26, 2024, Respondent requested permission from Complainant to perform the work. Complainant responded the following day and then again on February 29, 2024. Respondent did not respond to those communications until March 4, 2024, four days before the expiration of the Written Directive, with the following text message: “Felipe I’m getting estimate on how much it’s gonna cost to fix your house I’ll let you know tomorrow.” Respondent did not communicate with Complainant again until March 21, 2024, after the expiration of the Written Directive.
Complainant testified that he did not respond to Respondent’s text messages after March 8, 2024, the deadline in the Written Directive, because he was informed by the Registrar that he was not required to respond after the deadline expired.
Alfonso Sandoval, Respondent’s owner, testified that he agrees with Investigator Corlett’s findings and wants to perform the repairs.
Administrative notice is taken of Respondent’s prior License record on June 7, 2024. Such prior License record reflects that Respondent’s License Number 320564 was first issued on July 13, 2018, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no complaints resulting in 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 professional and 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 320564 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, June 11, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Felipe Estrada, Jr.
[email redacted]
Rhino Construction and Development, LLC
[email redacted]
Cliff Corlett
[email redacted]
By: OAH Staff