ALJDEC - Licensing
2024A-08880-CHC-ROC · Registrar of Contractors · 2025-03-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Hansen,
COMPLAINANT,
v.
The Villalpando Corporation, Inc
dba Villalpando Custom Homes Builders ,
License No. ROC 195458,
RESPONDENT.
No. 2024A-08880-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 3, 2025.
APPEARANCES: James Hansen and Robin Hansen appeared on their own behalf. Cruz Villalpando appeared virtually representing The Villalpando Corporation, Inc dba Villalpando Custom Homes Builders. ROC Investigator Miles Crosby appeared virtually representing the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC Packet
_____________________________________________________________________
FINDINGS OF FACT
The Villalpando Corporation, Inc dba Villalpando Custom Homes Builders (Respondent), is the holder of License No. 195458, B General Residential, issued by the Arizona Registrar of Contractors (Registrar or ROC) in May 2004.
On or about August 6, 2024, the Registrar received a Licensed Complaint Form (Complaint) from James Hansen (Complainant) against Respondent alleging abandonment on a project. The project was a concrete pad and the erection of a metal building thereon. The project had been contracted in September of 2023, with a subsequent adjustment to drop the depth of the floor, and work had begun but, as of the Complaint date, the concrete pad was still not completely prepared or ready for the concrete pour.
The Registrar assigned the Complaint to Investigator Miles Crosby. After one delay, Inv. Crosby conducted a Jobsite Inspection on August 13, 2024. The day before the inspection, Mr. Villalpando left a message for Inv. Crosby that he would be unable to attend. When Inv. Crosby spoke with Mr. Villalpando the next day, Mr. Villalpando indicated that the delay in completing the concrete pad had been due to needing a concrete pump truck.
At the inspection, Inv. Crosby documented the unfinished state of the concrete pad site; areas of underlying dirt had caved in and the rebar was not complete. The project site is in Heber-Overgaard forested area on a dirt road 11⁄2 miles from a main road; while access is not blocked, access is difficult for large and heavy equipment.
On August 16, 2024, Inv. Crosby issued a Directive requiring that Respondent perform corrective work and notify the Investigator no later than August 31, 2024. The Directive indicates the following:
DIRECTIVE REQUIREMENTS
Complaint Item: 1 - Getting pad formed and ready has taken over two years Pad has not been poured and is still not ready for concrete
Investigator’s Observation: The parties entered into the contract on 9/7/23 and revised the agreement on 11/2/23. The Respondent has not provided legal reason for not fulfilling the contact. The Respondent should begin work diligently to fulfill the contract for the agreed upon price.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. A.R.S. § 32-1154(A)(1).
At or about that time, Complainant and Respondent came to an agreement to move forward with more work, and Inv. Crosby closed the Complaint.
On October 13, 2024, Complainant contacted Inv. Crosby asking to reopen the Complaint.
At the November 6, 2024 Compliance inspection, Inv. Crosby again documented the unfinished state of the concrete pad. Respondent was again not present. Inv. Crosby subsequently forwarded the matter to ROC legal Department.
On September 5, 2024, the Registrar issued a Citation against Respondent charging the following possible violations:
Charge: 1 A.R.S. § 32-1154(A)(1)
Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Charge: 2 A.R.S. § 32-1154(A)(3) - R4-9-108(A)
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.
Charge: 3 A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158
Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
Charge: 4 A.R.S. § 32-1154(A)(22)
Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Mr. Villalpando filed an Answer to the Citation, indicating that certain inspections had been passed but the delay had to do with the location and weather conditions.
The Registrar subsequently referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.
On December 31, 2024, the Registrar issued a Notice of Hearing setting the matter to convene on February 3, 2025, at 9:00 a.m., via Google Meet. The Office of Administrative Hearings also issued an ORDER advising the parties about the virtual hearing and specifying how to connect to the February 3, 3025 hearing via Google Meet.
Complainants requested to appear in person for the hearing.
At hearing, Inv. Crosby testified consistent with the findings contained in his Jobsite Inspection, Directive and Compliance Inspection. Inv. Crosby testified that he had seen that reinforcement had been made to the panels but that all the rebar for the concrete slab was not yet in place. Inv. Crosby opined that the weather at the time of the Directive would not have affected completing the concrete pour. Regarding the parties’ contract, Inv. Crosby specifically noted that the “invoice” did not contain projected estimated completion dates.
At hearing, Respondent provided some additional explanation for the delays, indicating that his company is located in Mesa (3 hours away from the project), that he had hired subcontractors who did not perform, and that he had made deposits which he then could not get back. Respondent also indicated that they had to move some trees and rocks which were hindering access to be able to get to all areas for the construction preparation. Finally, Respondent noted that, with the additional work they had done to address the site issues, they would be able to complete the pour in about one week’s time and then the pad would need to cure.
At hearing, Complainant agreed he had requested adjustments for the pad, which had been accommodated by Respondent. Complainant was agreeable to have Respondent get the concrete work done, and agreed to notify the Tribunal if the work was completed prior to a decision; however, Complainant did not withdraw the Complaint.
Since the time of the hearing, Complainant has not notified the Tribunal that Respondent had completed the concrete pad.
Administrative notice is taken of Respondent’s license history and status with the Registrar on March 25, 2025. Respondent’s license record reflects that Respondent’s License No. 195458 is active, with one resolved case (April 2024) and 4 open cases, one of which is the instant case. Respondent’s license has been suspended at two different times in 2024.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Following the issuance of the Directive mandating correction of workmanship items, Inv. Crosby found that, although work had been in progress with some corrective action taken, the corrective work to complete the concrete paid had not been completed and that more than a reasonable period of time had passed for the corrective work to have been completed.
10. Based on the evidence in the hearing record, the Administrative Law Judge concludes that the Investigator-determined abandonment issue existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(1) in the absence of any documented legal for the abandonment.
11. Based on the evidence in the hearing record, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108(A) for failure to perform all work in a professional and workmanlike manner.
12. The Administrative Law Judge concludes that the Investigator-determined contract issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158 regarding required elements of a written contract. A.R.S. § 32-1158(A) sets forth the minimum elements of a contract:
Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:
1: The name of the contractor and the contractor's business address and license number.
2: The name and mailing address of the owner and the jobsite address or legal description.
3: The date the parties entered into the contract.
4: The estimated date of completion of all work to be performed under the contract.
5: A description of the work to be performed under the contract.
6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.
9b: The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A.
9c: The information in this paragraph must be prominently displayed in the contract in at least ten- point bold type...
9d: ...and the contract shall be signed by the property owner and the contractor or the contractor’s designated representative.
13. Finally, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and Respondent had failed to comply with the Directive by the Directive deadline. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action within the time period allowed in the Directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 195458 as follows:
a two business-day suspension on the effective date of the Registrar’s final Order in this matter; and,
on or before thirty (30) days after the effective date of the final Order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contract(s) to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.
that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before thirty (30) days after the effective date of the final Order. Further, 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 may 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 Ariz. Rev. Stat. § 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, March 25, 2025.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Miles Crosby
[email redacted]
James Hansen
6202 E McKellips Road Unit #44
Mesa, AZ 85215
[email redacted]
The Villalpando Corporation, Inc
Dba Villalpando Custom Homes Builders
43303 N Jackrabbit Rd
San Tan Valley, AZ 85140
[email redacted]
By: OAH Staff