ALJDEC decisions subject to certification as final

2016A-1761-ROC · Registrar of Contractors · 2016-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darryl J Strong,

COMPLAINANT,

v.

Candalario Mendoza

DBA: Mendoza Landscape and Irrigation,

License No. CR31.209083-D,

RESPONDENT.

No. 2016A-1761-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 9, 2016, at 10:00 a.m. and October 20, 2016, at 1:00 p.m.

APPEARANCES: Darryl J. Strong (“Complainant”) appeared on his own behalf; Candalario Mendoza DBA: Mendoza Landscape and Irrigation (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

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

On or about May 23, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had failed to complete its October 15, 2015 contract to construct a block wall, install two self-opening electronic gates, and perform other work at Complainant’s house at 712 W. Encanto Blvd., Phoenix, Arizona 85007.

The Registrar assigned the complaint to its Investigator, Matt Gunstra (“Investigator Gunstra”), for investigation. Investigator Gunstra scheduled the first jobsite inspection on June 6, 2016, which both parties attended.

On June 8, 2016, Complainant sent an email to Investigator Gunstra, requesting to amend the complaint to include allegations that there was a stress fracture in the east block wall and that a newly poured concrete driveway on the back of the property was deteriorating. On that same date, Investigator Gunstra sent a copy of the email to the parties, informing them of the new complaint items and that he would perform a second jobsite inspection on June 13, 2016.

On June 13, 2016, Investigator Gunstra performed a second jobsite inspection, which both parties attended. On that same date, Investigator Gunstra on behalf of the Registrar issued a Directive that required Respondent to correct certain deficiencies, in relevant part as follows:

Rear driveway section concrete is deteriorating or pitting in several areas and concrete finish does not appear to be of sufficient hardness. Concrete finish is easily damaged under normal use/weather.

. . . .

You may not perform or hire other contractors to perform work that is outside the scope of your license If any workmanship violations listed above are designated as outside the scope of your license then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

The deadline in the Directive for Respondent to resolve the complaint was on or before 5:00 p.m. on June 28, 2016.

After Respondent failed to comply with the Directive, Investigator Gunstra sent the complaint to the Registrar’s Legal Department. On July 1, 2016, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer, denying any statutory violation because he did not know that concrete flat work and installation of electronic gates exceeded the scope of his CR31 license.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on September 9, 2016, and October 20, 2016. Complainant testified on his own behalf. Respondent testified on his own behalf. Investigator Gunstra also testified.

Hearing Evidence

A CR31 Masonry license allows the holder of the license to perform the following scope of work:

This classification allows the licensee to grout, caulk, sand blast, tuckpoint, mortar wash, parge, clean and weld reinforcing steel as required for the licensee to install or repair:

1. Masonry

2. Brick

3. Concrete block

4. Insulating concrete forms

5. Adobe units

6. Stone

7. Marble

8. Slate

9. Mortar-free masonry products

A.A.C. R4-9-104(B). Investigator Gunstra testified that installation of an automatic electric gate and installation of a a concrete driveway were beyond the scope of Respondent’s CR31 Masonry license.

As of the dates of the hearing, Respondent had not installed the electronic gates. Complainant testified that, instead of paying Respondent the remainder of the contract price, he would hire another contractor to install the gates.

Investigator Gunstra testified that Respondent had repaired the crack in the block wall. Although the contract required stucco to be applied to the interior of the block wall, Investigator Gunstra testified that because the crack was not extensive and applying mortar wash was within the scope of Respondent’s CR31 license, he interpreted the scope of the license leniently to allow Respondent to repair the small crack and apply stucco over the repair.

Complainant testified that the concrete pad was 12’ x 14’ x 4”. Investigator Gunstra testified that because the driveway was so large and was not incidental to any work within the scope of Respondent’s license, he could not allow Respondent to attempt to repair it.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. The license was current and in good standing. Although the license has been briefly administratively suspended twelve times for lack of bond or non-renewal, it has never been disciplined.

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 factors in mitigation of the penalty and 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.”

Complainant established that Respondent’s workmanship in installing the concrete pad for the driveway was poor and that as a result, the driveway is crumbling. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

“‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.” “‘Knowingly’ means, with respect conduct or circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.” It has long been the law in Arizona and elsewhere that “‘[n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”

As a licensed contractor, Respondent is deemed to know the scope of his license as set forth in A.A.C. R4-9-104(B). Concrete flatwork is beyond the scope of Respondent’s CR31 license. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(16).

Respondent did not enter a financial settlement with Complainant to resolve his complaint about the concrete flatwork. Therefore, Complainant established cause to suspend or revoke 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, Respondent Candalario Mendoza DBA: Mendoza Landscape and Irrigation’s License No. CR31.209083-D shall be suspended for three business days.

It is further recommended that Respondent shall be required to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty calendar days following the effective date of the final order, Respondent’s license shall be revoked, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 21, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors