ALJDEC decisions subject to certification as final

2016A-1588-ROC · Registrar of Contractors · 2016-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andrew C Hermes,

COMPLAINANT,

v.

Candelario Mendoza, dba,

Mendoza Landscape and Irrigation,

License No. CR31.209083-D,

RESPONDENT.

No. 2016A-1588-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 6, 2016, at 1:00 p.m.

APPEARANCES: Andrew C. Hermes (“Complainant”) appeared on his own behalf; Candelario Mendoza, dba, Mendoza Landscape and Irrigation (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about June 28, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR31.209083-D for dual masonry contracting to Respondent.

On or about May 12, 2016, Complainant filed a complaint with the Registrar against Respondent based on Respondent’s construction of a perimeter block wall around Complainant’s house at 27424 N. 207th Ave., Wittmann, Arizona 85361.

According to the complaint, Complainant had paid Respondent $3,950.00 of the $10,000.00 contract price. The complaint did not include any allegation about the color of the block wall. The complaint alleged that the wall was to be completed by April 30, 2016, and that the lack of a completed wall was causing Complainant’s animals.

The Registrar assigned the complaint to its Investigator, Jack Grimm (“Investigator Grimm”), for investigation. Investigator Grimm performed a jobsite inspection on June 8, 2016. On June 16, 2016, Investigator Grimm on behalf of the Registrar issued a Directive to Respondent to perform certain corrective work on or before 5:00 p.m. on July 6, 2016, in relevant part as follows:

Blocks that showed up were 2 different colors, Owner stated if we didn't use them it would be another two weeks.

Contract states “6 feet high 4x8x16 in gray block with footings”. Complete per contract, unless written change order is in place. Verify 6 feet high from bottom of weep hole block.

Veronica in the office was suppose to have done the permit weeks ago and we still don't have it.

The contractor is to obtain permit and complete project per drawings and specifications with all required inspections.

Investigator Grimm testified at the hearing that, after the deadline on the Directive had passed, he contacted Respondent’s office manager and she stated that although Respondent had applied for a permit, it had not yet been issued. Inspector Grimm referred the matter to the Registrar’s Legal Department.

On July 8, 2016, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke, suspend, or otherwise discipline the license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, alleging that his license should not be disciplined because the contract required Complainant to obtain the permit, but Complainant’s wife insisted that Respondent begin the job without it, that after the Directive was issued, Respondent attempted to obtain the permit, but it was delayed by an easement issue, that Complainant’s wife had approved the brown block, and that after the County approved the permit, Complainant refused to allow Respondent to complete the wall but, instead, demanded that Respondent return all the money that Complainant had paid, even though the wall was half built.

An evidentiary hearing was held on October 6, 2016. Complainant submitted two exhibits consisting of numerous subparts and testified on his own behalf. Respondent testified on his own behalf. Investigator Grimm also testified.

Hearing Evidence

The parties’ March 17, 2016 contract required Complainant to obtain the permit and to pay $3,950.00 of the $10,000.00 contract amount as a down-payment for Respondent to begin the perimeter wall. The contract specified a gray block wall.

Complainant submitted Respondent’s May 18, 2016 affidavit that stated that on March 17, 2016, he had received an initial deposit of $3,950.00 in cash, that on May 18, 2016, he had received an additional $1,400.00 in cash to purchase materials to complete the fence, and that the remaining sum of $5,150.00 would be due when Respondent completed the perimeter wall.

Investigator Grimm testified that if the parties’ contract required the homeowner to obtain the permit, the contractor should not start construction until the permit has been issued.

Respondent testified that it applied for the permit in May 2016. Complainant submitted a letter dated August 1, 2016, from the Maricopa County Planning and Development Department stating that the permit had been approved on July 7, 2016, and requesting that Complainant pay the remaining balance of $310.00. Complainant also submitted a receipt from the Maricopa County Planning and Development Department dated August 12, 2016, for $310.00 for the permit.

Investigator Grimm testified that the block wall was obviously not complete at the June 8, 2016 jobsite inspection.

Investigator Grimm testified that a discussion occurred at the jobsite inspection about whether Complainant had approved the brown block, but that Respondent did not provide a written change order to change the wall from the gray block specified on the contract to brown block. Investigator Grimm testified that he believed that the brown block that Respondent used to construct the fence came from different runs in the manufacturing process because the blocks were two visibly different colors.

Respondent testified that more than half the job was complete, but that Complainant would not allow Respondent to complete the wall and, instead, insisted that Respondent return all the money that Complainant had paid.

Complainant testified that he was not willing to wait for Respondent and had other contractors lined up to complete the wall. Complainant testified that he breeds reptiles and needs a secure yard with a completed block perimeter wall for warmth for the reptiles.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license file according to the Registrar’s public website on this date. Respondent’s license was current and in good standing and there was no reported discipline against the license. However, Respondent’s license was administratively suspended numerous times for non-renewal or lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Although the parties’ contract required Complainant to obtain the permit, Respondent started construction before the permit was issued because Complainant and his wife insisted that the wall needed to be quickly completed. Complainant did not establish that Respondent violated any codes or that Complainant or anyone else suffered any prejudice caused by Respondent having started to construct the wall before the permit was issued. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

The wall is not complete, although substantial work has been performed on the wall. Complainant did not specifically complain about the color of the wall. Respondent has consistently and, in light of the circumstances, credibly stated that Complainant’s wife verbally approved the color of the wall. Investigator Grimm did not find and Complainant did not present evidence to establish any other workmanship deficiencies. Therefore, Complainant did not establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Respondent could not comply with the June 16, 2016 Directive because the permit was not approved until July 7, 2016, one day after the deadline on the Directive. It is not clear whether Complainant ever informed Respondent that the permit had been approved. It was clear at the hearing that Complainant would not allow Respondent to complete the wall and only wanted Respondent to return the monies that Complainant paid for the wall. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages, which must be recovered in a court having competent civil jurisdiction.

Although Respondent did not present any evidence that it had requested that the deadline in the June 16, 2016 Directive be extended, as noted above, Complainant did not establish any workmanship deficiencies. Because the permit was approved one day after the deadline in the directive and Complainant did not establish any workmanship deficiencies, Complainant did not establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Andrew C. Hermes’ complaint in Case No. 2016-1588 against Respondent Candelario Mendoza dba, Mendoza Landscape and Irrigation’s License No. CR31.209083-D shall be dismissed.

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 five days from the date of that certification.

Done this day, October 14, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors