ALJDEC - Licensing

2024A-02925-CHC-ROC · Registrar of Contractors · 2024-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maren Betterman,

COMPLAINANT

v.

J Vega and Sons Inc.

License No. ROC 200569,

RESPONDENT

No. 2024A-02925-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 6, 2024

APPEARANCES: Maren Betterman appeared on her own behalf. Erik Vega appeared on behalf of J Vega and Sons Inc.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

J Vega and Sons Inc. (Respondent) is the holder of License No. 200569 issued by the Arizona Registrar of Contractors (Registrar).

License No. 200569 is a CR-36 Plastering License which allows the scopes of work permitted by the C-36 Plastering and the residential R-36 Plastering licenses.

On or about May 2, 2022, Lineage Homes, LLC entered into a contract with Respondent to complete stucco work at 9368 E. Covey Trail, Scottsdale, AZ 85262.

On or about March 11, 2024, the Registrar received a Complaint against Respondent from Maren Betterman (Complainant) alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg issued a written directive 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 Friday April 26, 2024

. . . . .

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: STUCCO WORKMANSHIP IS NOT UP TO STANDARD. NOT MATCHING IN COLOR.

Investigator’s Observation: At this jobsite investigation I observed synthetic stucco repairs throughout the exterior lower section of the home with a color that does not match the existing stucco color. See P (3) thru P (13). The respondent stated that the same color was used for the repairs. The respondent shall correct the mismatched stucco color by appropriate means.

. . . .

Compliant Item 2: STUCCO WORKMANSHIP IS NOT UP TO STANDARD. STUCCO AT DIRT LEVEL DIFFERENT TEXXTURE

Investigator’s Observation: At this jobsite investigation I observed synthetic stucco repairs throughout the exterior lower section of the home. The complainant and homeowner showed me where repairs were not made and the stucco is incomplete at the ground level and the texture is not uniform. See P (12). The respondent shall correct the stucco at the dirt level that is a different texture by appropriate means.

All errors contained in original.

After the deadline in the directive expired, Investigator Fagerburg was notified that the corrective work had not been completed. Investigator Fagerburg then performed a compliance jobsite inspection.

At the compliance jobsite inspection, Respondent acknowledged that rather than re-applying the stucco, the areas in question were painted to match the existing painted stucco surface as close as possible. Respondent further acknowledged there was no stucco applied during the directive time frame.

Upon reviewing the Respondent’s License No. 200569, Investigator Fagerburg noted that Respondent performed the corrective work beyond the scope of its licensing.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Fagerburg testified consistently with his jobsite inspection notes, his written directive, and his compliance inspection notes. He further testified that no extension of time on the directive was requested or granted.

John Deakin testified on behalf of Complainant. Mr. Deakin testified that he was the builder of the home in question. He further testified that when the buyer of the home had the inspection done, the main issue was the texture and color of the stucco. He further stated that there were several attempts by Respondent to correct the issue, both the texture and color, but the corrective work Respondent attempted actually exacerbated the problem. Lastly, he testified that the owner of the home approached him and stated that they needed to “move on” and re-paint the house, for which Mr. Deakin provide them a financial credit in order to complete.

Erik Vega testified on behalf of Respondent. Mr. Vega testified that he was a “labor employee” and that Respondent attempted to repair the home multiple times. Each time it tried to match the color, but the sun had faded the existing color so it was difficult. Mr. Vega testified that he thought he could paint it because he was using the material that he bought from the “synthetic company.”

Administrative notice is taken of Respondent’s prior License record on August 6, 2024. Such prior License record reflects that Respondent’s License No. 200569 was first issued on October 13, 20024, and is currently active. Such prior License record also reflects that there was this open complaint and no prior complaints 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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent performed work outside the scope of its license in an attempt to correct its deficiencies. However, the evidence did not establish that Respondent knowingly contracted beyond the scope of its license. Therefore, Complainant did not establish that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(16).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 200569 for a period of 1 day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, August 26, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff