ALJDEC decisions subject to certification as final

2020A-02316-CHC-ROC · Registrar of Contractors · 2020-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen Boyk,

COMPLAINANT

Art Enriquez Concrete LLC,

License No. ROC 180548,

RESPONDENT

No. 2020A-02316-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 16, 2020

APPEARANCES: Complainant Karen Boyk appeared on her own behalf. Art Enriquez, Owner, appeared on behalf of Respondent Art Enriquez Concrete LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Art Enriquez Concrete LLC (Respondent) is the holder of License No. 180548 issued by the Arizona Registrar of Contractors (Registrar).

In March 2018, Karen Boyk (Complainant) entered into a contract with Respondent for a pool refinishing project.

On or about May 8, 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 Stephen Lawton. After a jobsite inspection, Investigator Lawton 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 July 2, 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 reasons1, 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:

Complaint Item 1: Pool coping- nice size pieces of cement falling off (lip around pool) coping into the pool.

Investigator’s Observation: It was observed that concrete is falling off the lip of the coping and was not finished per industry standards. Forms were not taken off until following day after pour, thus not allowing for final finish of concrete. Will have to return pool to clean condition after repairs.

. . . .

Complaint Item 2: Corners of coping are not rounded properly. Requires grinding to improve symmetry.

Investigator’s Observation: It was observed that the corners of coping had not been finished to industry standards. Forms were not taken off until following day after pour, thus not allowing for final finish of concrete. Will have to return pool to clean condition after repairs.

. . . .

Complaint Item 6: Pool coping is pitted all around, requiring resurfacing.

Investigator’s Observation: It was observed that the concrete was not finished per industry standards. Forms were not taken off until following day after pour, thus not allowing for final finish of concrete. Will have to return pool to clean condition after repairs.

. . . .

Complaint Item 7: Top of coping is breaking apart with pieces of cement falling into pool. Surface is rough.

Following the issuance of the written directive, Respondent performed some corrective work on June 18, 2020. After the deadline in the directive expired, Investigator Lawton was notified the corrective work had not been completed.

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; and A.R.S. § 32-1154(A)(22).

Investigator Lawton testified that during his compliance inspection on July 28, 2020, Complaint Item 7 had been corrected, but Complaint Items 1, 2, and 6 had not been corrected to be within the Registrar’s standards.

Complainant testified that after Respondent’s attempt to complete the corrective work on June 18, 2020, she did not hear from Respondent again to perform any additional work.

Mr. Enriquez testified that he sent an employee over on June 19, 2020, to perform additional work, but Complainant would not answer the door. Mr. Enriquez acknowledged that he did not contact Complainant prior to the worker showing up that day to ensure that Complainant was home. Mr. Enriquez asserted that he called or texted Complainant’s husband when attempting to schedule the further work, but was unable to provide exact dates of those attempted contacts. Mr. Enriquez indicated he texted Complainant’s husband on August 26, 2020, well after the deadline in the directive.

Respondent presented the testimony of Edward Brogdon regarding the work on the project. Mr. Brogdon acknowledged that the work on the project was “obvious[ly] not acceptable.” Mr. Brogdon indicated that after the initial corrective work was completed, it would be necessary to go back to determine if the patch matched the existing concrete. Mr. Brogdon asserted that he tried to inspect the project four times in the three days preceding the hearing, but admitted that he did not make any attempts to see the project between June 2, 2020, and July 2, 2020.

Administrative notice is taken of Respondent’s prior License record on October 5, 2020. Such prior License record reflects that Respondent’s License No. 180548 was first issued on December 14, 2002, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint 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 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. 180548 for a period of three 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)(7), 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, October 6, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000