ALJDEC - Licensing

2024A-00535-CHC-ROC · Registrar of Contractors · 2024-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mariali Garcia,

COMPLAINANT

v.

Desert Sun Customs & Restoration LLC

License No. ROC 333009,

RESPONDENT

No. 2024A-00535-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 4, 2024

APPEARANCES: Complainant Mariali Garcia appeared telephonically on her own behalf. Levi Conrad appeared telephonically on behalf of Respondent Desert Sun Customs & Restoration LLC. Registrar of Contractors Investigator Ruben Perez appeared telephonically.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Desert Sun Customs & Restoration LLC, (Respondent) is the holder of License No. 333009 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 19, 2023, Mariali Garcia agreed to have Respondent remodel her master bathroom for a cost of $8,276.87, at her home in Tucson, Arizona On or about September 28, 2023, Mariali Garcia (Complainant) agreed to have Respondent paint her home at a cost of $14,678.82.

On or about January 15, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Ruben Perez. The jobsite inspection was performed on February 6, 2024.

Investigator Perez then issued a Written Directive on or about February 12, 2024, which provided in pertinent part 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 February 29, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: I contracted them to remodel my bathroom, total cost 50K, not yet completed.

Investigator’s Observation: Master bathroom vanity and cabinet were observed with damaged (stained and cracked) sidings. Master bathroom sink overflow trim ring was observed damaged (broken). Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 2: . there was 0 prep done and now the paint is flaking, bubbling and peeling.

Investigator’s Observation: Several areas on residence West wall and privacy wall were observed with peeling and bubbling paint. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 3: the tile has missing grout and when I showed Levi he filled 1 grout line and left the rest as is.

Investigator’s Observation: Complainant reported the missing grout was corrected prior to inspection. The rest of grout in master bedroom was observed installed within industry standards.

Governing Rule: NA.

On March 12, 2024, Investigator Perez conducted a Compliance Jobsite Inspection. Investigator Perez noted the following in pertinent part:

Compliance Jobsite General Notes: A compliance job site inspection was performed with complainant, Mariali Garcia present. Respondent was not present. Complainant alleges that respondent failed to perform all repairs as per written directive.

Compliance Findings: Respondent did not comply with written directive. Findings are noted in italic font below each compliance item.

Complaint Item 1: I contracted them to remodel my bathroom, total cost 50K, not yet completed.

Investigator’s Observation: Master bathroom vanity and cabinet were observed with damaged (stained and cracked) sidings. Master bathroom sink overflow trim ring was observed damaged (broken). Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was corrected as per written directive.

Complaint Item 2: . there was 0 prep done and now the paint is flaking, bubbling and peeling.

Investigator’s Observation: Several areas on residence West wall and privacy wall were observed with peeling and bubbling paint. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per written directive as several areas on residence West wall and privacy wall were observed with peeling and bubbling paint.

On March 25, 2024, 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).

On or about April 8, 2024, Respondent submitted an Answer to the Registrar.

On or about April 18, 2024, a Notice of Hearing was issued setting a hearing on June 4, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Perez testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Perez testified that Complaint item 1 had been corrected, however as to Complaint item 2, the paint was bubbling, and peeling on the west wall and privacy wall.

Finally, Investigator Perez testified that he contacted Complainant on May 31, 2024, and Complainant informed him that no further work had been performed and the walls were in the same condition as they were at the Compliance Jobsite Inspection.

Complainant testified on her own behalf and confirmed that while the bathroom had been completed pursuant to the Directive, the painting had not.

Further, Complainant testified that she believed that Respondent did not properly prepare the house for painting by failing to power wash the stucco and make the necessary preparations before painting. Complainant testified too that she was disappointed that Mr. Conrad has hired out workers to perform the job initially.

Complainant testified that she received two invoices for the painting, and paid $15,495.01 for the painting.

Mr. Conrad testified that he had Complainant mark the walls with blue tape as to the areas she wanted repaired and based the estimate on that.

Further, Mr. Conrad testified that he tried his best to comply with the Written Directive, but admitted that he may have missed some spots, but that he would be willing to go back out to fix those areas.

Administrative notice was taken of Respondent’s prior License record on June 19, 2024. Such prior License record reflected that Respondent’s License No. 333009 was first issued on April 14, 2021, and reflected that there was one open case, namely the present case. The record also reflected that there was one disciplined case and one “resolved/settled” case.

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 which was completed, was not in conformity with the Registrar’s standards, as the painting was flaking, bubbling and chipping; and the bathroom vanity and cabinet had stained and cracked sidings, and the trim ring was broken. 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 Respondent failed to fully complete the corrective work following the Directive being issued. Both parties as well as Investigator Perez testified that the bathroom repairs were corrected. However, the preponderance of the evidence demonstrated that the painting was not full completed as the peeling and bubbling were still present on the west wall and the privacy wall. 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. 333009 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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, June 19, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Desert Sun Customs & Restoration LLC

[email redacted]

Mariali Garcia

[email redacted]

By: OAH Staff