ALJDEC decisions subject to certification as final

2016A-1567-ROC · Registrar of Contractors · 2016-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Promenade Estates,

COMPLAINANT,

v.

Candelario Mendoza, DBA: Mendoza Landscape and Irrigation, License No: 209083,

RESPONDENT.

No. 2016A-1567-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 15, 2016

APPEARANCES: Complainant Promenade Estates was represented by William Holliday, Esq. Respondent Candelario Mendoza dba, Mendoza Landscaping and Irrigation represented his own interests.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant Promenade Estates is an apartment community located at 2330 West Glenrosa Avenue, Phoenix, Arizona 85015.

Respondent holds Arizona Contractor’s License 209083. Respondent’s license is current and the qualifying party on the license is Jerry Don White.

On May 11, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had abandoned the parties’ contract to build a block fence and that the work Respondent had begun on the fence was poor. The complaint stated that the contract was entered into on January 29, 2016 and a fifty percent deposit was paid with a promise that the project would take two weeks to complete once work began but that this was not the case.

The Registrar assigned investigator Ted Stodder to investigate the complaint. Stodder testified that he arranged to perform an inspection on June 20, 2016 and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Stodder indicated that at the time of an inspection, he substantiated Complainant’s allegations that the project had not been completed per the contract. He noted that he did not address workmanship issues at the time because the project was incomplete. Stodder said at the time of the inspection, very little of the block fence had been constructed. He recalled informing Respondent of the need to obtain a permit and before finishing the wall construction.

On June 23, 2016, Stodder sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 14, 2016.

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

Complete project per contract

Leave opening at APS transformer

Get footing and final inspection and deliver the final card to Jesseka Ortega

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On July 12 or 13, 2016, Stodder recalls receiving a call from Jesseka Ortega informing him that Respondent had completed the wall and that it was “not the best”, but was acceptable. Stodder issued a letter closing the complaint.

On August 1, 2016, Ortega notified Stodder that the complaint needed to be reopened because blocks were coming off the wall, caps could be removed and Respondent had failed to remove all of the mesh fence.

.

Stodder reopened the complaint and on August 9, 2016, performed a compliance inspection. Stodder observed that the block walls contained loose caps that could be removed with a finger as well as loose bricks throughout the length of the block wall. He therefore forwarded the matter to the Registrar’s legal department for review.

On August 4, 2016, Stodder issued warning letters to Respondent for violating A.R.S. § 32-1124(B) by using an expired license number on his proposal/contract and A.R.S. § 32-1158(B) by failing to include certain elements in his proposal/contract. Both warning letters stated that “[a]t this time, the Registrar will not seek discipline against you for the failure to comply with [the provisions] noted in [these] letter[s]. However, the Registrar may seek discipline against you if it discovers future violations of [these statutory sections].”

On August 17, 2016, the Registrar issued Respondent a Citation. That Citation contained three charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified “[a] violation of A.R.S. § 32-1154(A)(12)(‘Failure in any material respect to comply with this chapter’) based on violations of both A.R.S. §§ 32-1124(B) and 32-1158(B). Charge 3 alleged a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Jesseka Ortega testified she is the property manager of Complainant who hired Respondent to build a four inch block wall to replace a mesh fence. Ortega indicated that she signed a contract with Respondent on January 29, 2016 in which he agreed to begin and complete the project in February or March 2016 with the project time spanning two weeks. Respondent did not begin work until May 2016 and construction took much longer than expected, leading to the filing of the complaint. After the block wall was finished in July 2016, Ortega noticed that caps on the columns were loose and blocks would fall off and could be easily moved. Ortega said Respondent had come back a few times to resolve the issue without success. She indicated that three to five blocks fall from the wall each week. Ortega acknowledged that some of Complainant’s tenants jump over the wall, but denied that Complainant had a vandalism problem. Ortega commented that tenants jump over other walls on the property and those walls did not experience these issues.

Respondent testified that he built a “perfect” wall for Complainant, but that while he was working, people broke half the material for the wall by crossing over the wall, loosening bricks. He said he had fixed the bricks by putting them back in place several times, but cannot keep going back on a daily basis to do this. Respondent indicated that on one occasion he saw a guy jump the wall and put blocks on the ground. He opined that a four inch block wall such as the one he built can contain gaps between bricks and is not meant to withstand the pressure of people jumping over it. Respondent said that the reason the other walls on Complainant’s property are stronger is because they have stucco to reinforce them. He stated he did not use stucco on the wall in question.

Stodder testified consistently with the facts noted above. He also noted that based on his many years of experience in the construction industry, in order to be workman-like, block walls must be able to be climbed over and on without coming apart. He elaborated that a block wall should be able to withstand being pushed and leaned on given that it is a semi-permanent structure. Stodder opined that a block wall should be stable and stand up to some kind of pressure.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Undisputed credible testimony established Respondent constructed a block wall of poor quality for Complainant inasmuch as the block wall came apart both when pressed with a finger and when jumped over. Stodder’s testimony that a block wall must withstand the pressure of being climbed on comports with common sense and is deemed credible. Even Respondent acknowledged that the other walls on the property withstood the ordinary pressure of being jumped over when reinforced with stucco. Thus, Complainant established Respondent’s work on the block wall was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The Tribunal finds that a violation of A.R.S. § 32-1154(12) based upon violations of A.R.S. §§ 32-1124(B) and 32-1158(B) is not appropriate in this case given that Stodder’s warning letters for these violations agreed not to seek discipline for the violations while reserving the right to seek future discipline if Respondent continued to violate these statutory sections. In addition, Complainant’s counsel stated that it was not pursuing discipline against Respondent on the basis of these regulatory violations.

An A.R.S. § 32-1154(A)(22) violation is also not warranted given that the Directive did not address workmanship issues and related only to project completion and some permitting issues that both Complainant and Stodder agreed was done. Stodder did not issue an amended Directive addressing workmanship issues before forwarding the file to the legal department for issuance of a citation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Candelario Mendoza dba, Mendoza Landscaping and Irrigation’s License No. 209083 for a period of five (5) days.

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 40 days from the date of that certification.

Done this day, October 31, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors