ALJDEC decisions subject to certification as final

2018A-741-CHC-ROC · Registrar of Contractors · 2018-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Montessori Academy,

COMPLAINANT,

One Stop Improvements LLC d/b/a,

One Stop Asphalt,

License No: 289040

RESPONDENT.

No. 2018A-741-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 24, 2018

APPEARANCES: Julianne Newman and Musa Sahhar, Complainants, Steve

Yagudayev, Respondent, Randy Cason, Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent One Stop Improvements LLC d/b/a One Stop Asphalt, [hereinafter, “OSA”] is the holder of License Number 289040 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 18, 2017, Complainant Montessori Academy [hereinafter, the “Academy”] entered into a contract with OSA to, among other things, demolish parking lot asphalt, resurface with new asphalt, paint stripe parking lot, perform plumbing services to install 800 linear feet of PVC pipe and install shut off valves.

On or about February 15, 2018, the Registrar received a Complaint against OSA from Complainant alleging Respondent performed poor work.

The Registrar assigned the complaint to Investigator Matt Gunstra. On or about April 6, 2018, a Job Site Inspection [“JSI”] was conducted. After the JSI Investigator Gunstra issued a written directive containing a corrective work order [CWO] to OSA that provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 5/2/18. You are hereby directed to remedy the following violations by the appropriate means: [emphasis added].

Complaint Item 4: Patches in asphalt throughout property

Directive: Certain patches are not installed in a workmanlike manner and do not appear level and smooth compared to others. Respondent may consider replacement of select areas if repairs are excessive.

Complaint Item 6: Asphalt crumbling on edges and other areas

Directive: Certain areas of the asphalt have loosened or loosening aggregate. Some of these areas have inconsistent appearance. Areas of loose material or material not properly finished should be repaired by appropriate means.

Complaint Item 8: Ground conductor on rear building was never reinstalled

Complaint Item 9: Leak under asphalt was not there prior to repaving

Directive: Respondent shall hire a properly licensed plumbing subcontractor and repair the leaking pipe by appropriate means.

Complaint Item 10: Leak at new irrigation valve pipe connection

Complaint Item 11: Exposed conduit in asphalt near gate

Directive: Respondent shall ensure conduit is buried at a depth required by code and that the asphalt covering is repaired by appropriate means

Complaint Item 13: Missing box at water line, west end of lot

Directive: Respondent acknowledged that he verbally told Complainant he would install a new box in the location.

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

In the course of his investigation, Mr. Giustra learned that Complainant believed that the plumbing services performed for OSA had been done by an unlicensed contractor. Mr. Gunstra spoke to a Mr. Ray Perez by telephone who confirmed and admitted that he was the person who performed plumbing contracting services on OSA’s project for the Academy. Mr. Perez admitted to Mr. Gunstra that he was not a licensed plumbing contractor.

Following the issuance of the CWO, Mr. Gunstra, on May 8, 2018, conducted a compliance inspection at the Academy’s site. He found Complaint Items 4, 8, 9, 10 and 11 had been corrected. However, as to Complaint item 6 and 13, Mr. Giustra noted:

Asphalt crumbling on edges and other areas

Compliance Findings: Respondent appears to have made a few spot repairs in the parking lot by applying patching material to the asphalt. However, in many other areas no repair was attempted and I observed loose asphalt aggregate and areas easily loosened. At this time it is the opinion of the ROC that the asphalt is improperly installed or compacted in areas which is causing it to come loose under normal vehicular traffic. Item has not been corrected by appropriate means at this time.

Complaint Item 13: Missing box at water line, west end of lot.

Directive: Respondent acknowledged that he verbally told Complainant he would install a new box in the location.

Compliance Findings: Item not attempted to be done by Respondent. I further explained to Respondent what correction needs to be made. He agreed to do them ASAP. Non-compliance at this time. Respondent did not correct.

The Registrar issued a Citation against OSA on May 14, 2018 charging three possible violations:

A violation of A.A.C Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(9);

A violation of A.R.S. § 32-1154(A)(9) and,

A violation of A.R.S. § 32-1154(A)(22)

On July 24, 2018, a hearing was conducted by the Office of Administrative Hearings, an independent agency.

The Registrar’s Investigator Randy Corson testified that after he contacted both parties in this matter, he conducted a pre-hearing inspection on July 23, 2018 and found the site to be in the same condition as related in Inspector Gunstra’s May 9, 2018 Compliance Inspection notes.

Julianne Newman, CEO and Principal of the Academy testified that OSA left their parking lot resurfacing with areas where water puddles and with asphalt that is crumbling around the edges. Also, Musa Shahhr testified for the Complainant and confirmed the poor condition of the asphalt job. Moreover, he Complainant testified that he became aware after speaking to Ray Perez, the plumber used by OSA, was not a licensed contractor. Mr. Perez installed the PVC pipe at a depth contrary to requirements of local building code and the shut-off valves that Perez installed did not function and leaked.

For the Respondent, Mr. Steve Yagudayev testified that he thought the plumber used on this job was a licensed contractor, but admits he never asked him or checked the Registrar for Ray Perez’s license status. As to the crumbling edges of asphalt alleged to be poor workmanship, he maintained he had no duty under the contract to repair the crumbling edges.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 5, 2018. OSA’s license has since April 24, 2018, been and is currently administratively suspended because its corporation has been dissolved.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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).

Inasmuch as it is shown by a preponderance of the evidence that OSA performed services that left the Academy with a parking lot having water puddles asphalt that is crumbling around the edges, the evidence established a that OSA’s work failed to meet minimum workmanship standards required by A.A.C. R4-9-108. Therefore, Complainant has establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Complainant has established, by a preponderance of the evidence, that OSA - by utilizing the plumbing contracting services of Ray Perez, an unlicensed plumbing contractor - did engage in aiding or abetting an unlicensed person to evade this chapter, did knowingly or recklessly combining or conspire with an unlicensed person with intent to evade A.R.S. § 32, et seq.

By a preponderance of the evidence, Complainant has proven that 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, One Stop Improvements LLC d/b/a One Stop Asphalt, License No: 289040 shall be suspended for one (1) day.

FURTHER IT IS RECOMMENDED that a civil penalty of $250.00 be assessed against One Stop Improvements LLC d/b/a One Stop Asphalt, License No: 289040 for its violation of A.R.S. § 32-1154(A)(22).

FURTHER IT IS RECOMMENDED 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 Order, the Registrar 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding 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 40 days from the date of that certification.

Done this day, August 5, 2018

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors