ALJDEC decisions subject to certification as final
2020A-00966-CHC-ROC · Registrar of Contractors · 2020-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Woodside Construction, LLC,
COMPLAINANT
v.
John Joseph Connor,
DBA: East Valley Stone and Masonry,
License No. ROC 149435,
RESPONDENT
No. 2020A-00966-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 30, 2020
APPEARANCES: Owners Jamie and Amanda Woodside appeared on behalf of Complainant Woodside Construction, LLC. Respondent John Joseph Connor, doing business as East Valley Stone and Masonry, failed to appear. Registrar of Contractors Investigator Mike Springer appeared.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
John Joseph Connor, doing business as East Valley Stone and Masonry (Respondent) is the holder of License No. 149435 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 11, 2018, Woodside Construction (Complainant) contracted with Respondent for Respondent to: i) dig, prepare, and pour footings; ii) construct a wall around the residence; iii) install a motorized gate with controls, and iv) construct a three course retaining wall. The contract failed to include: i) Respondent’s license number; ii) an estimated date for completion of the work; iii) any deposit paid or payment schedule; and iv) that Complainant has a right to file a written complaint with the Registrar including the requisite information pertaining to the filing of a complaint.
Complainant is a general contractor, and the home for which Complainant contracted with Respondent to perform work is owned personally by the owners of Complainant, Jamie and Amanda Woodside.
On or about February 26, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Mike Springer.
Investigator Springer conducted a jobsite inspection on March 27, 2020.
After the jobsite inspection, on March 30, 2020, Investigator Springer issued a Written Directive to Respondent that provided as follows:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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 the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 20th, 2020.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Started work without permit.
Investigator’s Observation: Permit was issued, Complainant states Respondent never picked it up and no inspections other than the front yard retaining wall were performed or approved. All inspections must be scheduled and passed.
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.
Compliance Item: 3 - Did not use rebar in wall.
Investigator’s Observation: I found only 2 pieces of sticking out of the wall. Complainant drilled holes at grout line and was able to poke wire through. Pic 4
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.
Compliance Item: 4 - Did not grout cells in wall.
Investigator’s Observation: When looking at the large cracks in the walls at several locations, I could see no rebar or grout in the cells that were exposed. Pic 8
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.
Compliance Item: 5 - Did not grout posts or corners.
Investigator’s Observation: When looking at the large cracks in the walls at several locations, I could see no rebar or grout in the cells that were exposed.
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.
Compliance Item: 6 - Improper bond beam with rebar laying on top of wall.
Investigator’s Observation: Bond beam is exposed and in some areas disconnected from the top of the wall. Pic 4, 5, 9, 11.
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.
Compliance Item: 7 - Did not anchor gates correctly and did not finish gates.
Investigator’s Observation: Gates are missing connection bolts and are loose. Pic 15.
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.
Compliance Item: 8 - Did not finish block work/caps
Investigator’s Observation: Tops of wall are unfinished throughout. Pics 4, 5, 9, 11,
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.
Compliance Item: 9 - Did not finish operator & controls, latch.
Investigator’s Observation: Column for gate controls not done. Pic 16.
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.
On April 20, 2020, Investigator Springer contacted Complainant to inquire as to whether Respondent had performed any corrective work. Investigator Springer testified that Complaint advised that Respondent had been to the jobsite once since the issuance of the Written Directive. Respondent did not have permission at that time to perform any work, and the homeowners were not present at that time.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The Registrar issued a Notice of Hearing, setting a hearing at 8:30 a.m. on June 30, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A Notice converting the hearing to video-conference or telephonic was issued to Respondent’s email address on June 9, 2020.
A hearing was held on June 30, 2020. Investigator Springer testified regarding his observations and Jamie and Amanda Woodside testified on behalf of Complainant and submitted several exhibits.
Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Springer testified that he performed a prehearing inspection on June 26, 2020, and that at that time, Mr. Woodside had created additional holes in the walls to show that the rebar and concrete were missing. Mr. Woodside had also removed the caps so that it could be seen that the blocks were hollow and the bond beams had been cut. This was additionally illustrative of the deficiencies noted at the jobsite inspection. Investigator Springer testified that none of the corrective work had been performed, and that the one attempt at corrective work was done while Respondent’s license was suspended.
Investigator Springer testified consistently with the Written Directive and his jobsite notes and further testified regarding the photographs that were included in his report.
Mr. Woodside testified that on January 11, 2018, he hired Respondent to install a wall around his personal residence. The contract amount was $22,355.00. Respondent started the work one week later. Work progressed until April 12, 2018, when the last of the block work was completed. However, the gate installation needed to wait until the pool was installed. After the pool installation, in November 2018, Respondent performed the gate installation.
Mr. Woodside testified regarding photographs he submitted into evidence that were illustrative of the deficiencies contained within the Registrar’s Written Directive. Mr. Woodside explained that the only way to rectify the deficient workmanship was to tear down the wall and rebuild it correctly, which would result in collateral damage to his landscaping, resulting in additional cost.
Administrative notice was taken of Respondent’s prior License record on July 1, 2020. Such prior License record reflects that Respondent’s License No. 149435 was first issued on October 12, 1999, and is active. Such prior License record also reflects that there were no open or prior complaints against Respondent’s license.
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 violations 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).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).
The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of 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. 149435 for a period of seven (7) days.
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 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 final 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 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 40 days from the date of that certification.
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-137160-45720000Done this day, July 13, 2020.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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