ALJDEC decisions subject to certification as final

2025A-01957-CHC-ROC · Registrar of Contractors · 2025-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Patrick Krystofiak ,

COMPLAINANT

Desert Valley Plastering LLC

License No. ROC 247701,

RESPONDENT

No. 2025A-01957-CHC-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: July 14, 2025

APPEARANCES:

Complainant: Steven Krystofiak

Respondent: Armando Corona

Aurora Corona

Registrar of Contractors: Daniel Otero, Investigator

ADMINISTRATIVE LAW JUDGE: Nedra-Su Kawasaki

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.

Complainant Exhibits 1-21A. Respondent Exhibits 1-16.

FINDINGS OF FACT

Desert Valley Plastering, LLC (Respondent) was the holder of License No. 247701 issued by the Arizona Registrar of Contractors (Registrar) on July 29, 2008.

On or about September 21, 2022, Steven Krystofiak (Complainant) entered into a contract with Respondent for stucco work on gazebo and pump house. The contract did not include the estimated date of completion or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about February 25, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment.

The Registrar assigned the complaint to Investigator Daniel Otero, who issued a Jobsite Inspection Notice on March 10, 2025, scheduling the inspection for March 27, 2025.

Investigator Otero conducted the jobsite inspection on March 27, 2025, and Respondent was not present. Following the inspection, Investigator Otero issued a Written Directive From the Registrar to Respondent on March 31, 2025 that provided as follows:

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

Complaint Item: - The problems are that the project needs another layer of synthetic stucco.

Investigator’s Observation: Verified. At the time of the Inspection it was observed, the final coat of EFIS, Exterior Insulation and Finish System appears to be missing the final finish coat, there are many areas where the corners are not shaped correctly, the previous is visible in many areas as well. The archways have many inconsistencies throughout. The Respondent will need to correct this by the appropriate means.

Governing Rule: 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: - 25% of the arches need to be redone because they are not even/symmetrical/level.

Investigator’s Observation: Verified. At the time of the Inspection it was observed, many of the archways are inconsistent in many with no smooth radiuses, not level from front to the back, bullnose corners not smooth. The Respondent will need to correct this by the appropriate means. Governing Rule: 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

The Written Directive required Respondent to notify Investigator Otero of Respondent’s compliance with the directive prior to 5:00 p.m. on April 23, 2025.

On May 2, 2025, Investigator Otero issued a Compliance Inspection Notice, setting the inspection for May 8, 2025. During the inspection, Compliance Item #2 was deemed not completed.

On May 16, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on May 21, 2025. Respondent’s Answer stated it believed that the remaining issue was an underlying structural problem with the arches, but was willing to do what it could to make them as smooth as possible. Additionally, Respondent stated in its Answer that after receiving the Compliance inspection findings, it reached out to Complainant who agreed to allow further corrective work to be performed on June 3, 2025. Further, Respondent stated in email correspondence attached to its Answer that it would revise its contract template to comply with statutory requirements.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On June 2, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for July 14, 2025.

The hearing was held via Google Meet on July 14, 2025.

Investigator Otero testified in support of his jobsite inspection findings, compliance inspection findings, and Citation. He further testified that he had received email correspondence from Respondent a week prior to the hearing requesting a pre-hearing inspection be completed as corrective work had been done since the compliance inspection. Investigator Otero noted, however, that the pre-hearing inspection was not completed because Complainant was out of town and was not available prior to the hearing.

Complainant testified that corrective work was completed on the arches at issue after the Compliance inspection. He further testified that he found the shape of the arches was corrected satisfactorily, but the texture and color of the stucco did not match. Complainant also noted he had a new complaint; during the corrective work done after the Compliance inspection there was overspray of paint onto exposed wood.

Respondent testified that the shape of the arches was due to an underlying framing/structural problem and that this was brought to Complainant’s attention prior to starting work. Respondent further testified that Complainant advised Respondent to “do the best you can.” Respondent described in detail the steps taken to correct the shape of the arches at issue.

Administrative notice was taken of Respondent’s prior License record on July 14, 2025. According to that record, Respondent’s License No. 247701 was active on July 14, 2025; and there was 1 open complaint (instant case), no disciplined cases, and no resolved/settled complaints against Respondent’s license.

After the hearing, the undersigned ALJ issued an Order reopening the record until August 1, 2025 to allow Investigator Otero to conduct an additional jobsite inspection to determine if the corrective action taken after the Compliance inspection met the Registrar’s standards. The Order also provided the parties an opportunity to request the hearing reconvene for further testimony if necessary.

On July 24, 2025, Investigator Otero conducted an inspection with all parties present. Investigator Otero found that the repairs were completed to meet workmanship standard practices common in the industry.

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. Respondent bears the burden of proof to establish an affirmative defense 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.”

A contractor accepts the surface upon which they work. Prior to performing work, a contractor should inspect the surface for flaws or defects that would affect the work to be performed; if the surface is unacceptable, the contractor should call the defect to the owner’s attention so that the owner can choose to pay for corrective work or for the contractor to request a warranty disclaimer.

Abandonment means to give up on, withdraw from, or cease or surrender involvement in the project and contract. A contractor’s actions, or inaction, must be so severe, that a reasonable person could infer the contractor’s intent to abandon the project, incurring the consequences of that abandonment. Mere untimeliness or inefficiency does not amount to abandonment.

Compliance inspections protect both Complainant and Respondent by establishing the state of work and an expert opinion about compliance at the end of the Directive period. While a compliance inspection is not required for a matter to go to hearing, the investigator’s testimony about the state of work and compliance at the end of the Directive period must be discounted because the investigator did not see it in person. In that situation, the inspector’s testimony is only as reliable as the information used to reach their opinions. If the information does not clearly demonstrate compliance or noncompliance, then the burden of establishing the baseline condition of the property and compliance with applicable statutes and rules is placed on the parties instead of upon the assigned expert. When compliance is in a dispute, a compliance inspection is highly encouraged to protect the parties and develop reliable expert evidence.

The preponderance of the evidence failed to establish that Respondent departed from or disregarded plans or specifications in violation of A.R.S. § 32-1154(A)(2)(a).

The preponderance of the evidence established that Respondent failed to perform all work 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 preponderance of the evidence established that Respondent failed to comply with this chapter in violation of A.R.S. § 32-1154(A)(12), namely the contract requirements in A.R.S. § 32-1158.

The preponderance of the evidence established that although Respondent took appropriate corrective action following a written directive from the Registrar and the corrections met industry standard, Respondent did so after the corrective period deadline. Therefore, Respondent violated 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. 247701 for a period of one (1) day.

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, 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 contracts to include the nine terms required by A.R.S. § 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.

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.

-54864001

001

-137160-45720000Done this day, August 26, 2025.

/s/ Nedra-Su Kawasaki

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

[email redacted]

Daniel Otero

[email redacted]

Desert Valley Plastering LLC

[email redacted]

Steven Patrick Krystofiak

[email redacted]

By: OAH Staff