ALJDEC decisions subject to certification as final

2021A-00550-CHC-ROC · Registrar of Contractors · 2021-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Melissa A. Smith,

COMPLAINANT

Flat Line Grading and Paving LLC,

License No. ROC 294631,

RESPONDENT

No. 2021A-00550-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 25, 2021

APPEARANCES: Complainant Melissa A. Smith appeared on her own behalf. Respondent Flat Line Grading and Paving LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Flat Line Grading and Paving LLC (Respondent) is the holder of License No. 294631 issued by the Arizona Registrar of Contractors (Registrar).

In March 2019, Respondent performed paving work on an easement located on Melissa A. Smith’s (Complainant) property.

On or about February 8, 2021, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent had damaged her property outside of the easement in which Respondent was working.

The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection on March 8, 2021, Investigator Fagerburg issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 Monday 4-19-2021.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliant Item 1: My property was/is obstructed with 6’ deep piles of rubble (rocky) & plant destruction & my water lines were broken for 5 months / my-son in law repaired & property owner who hired Poston paid 4 repairs. But, the other damages are left untouched though Poston claims he’s going to repair – any day now, never shows, has been vulgar & changed the subject to “whores” and intimidated the gentleman who was with me. He said Poston & his man were “roughnecks” & had threatened him. Very inappropriate. Sorry for the penmanship, I have deforming arthritis in my hands and my Mac had to be mailed to Apple for repairs - Melissa Smith.

Investigator’s Observation: The respondent is to obtain any and all permits and inspections required by the County of Maricopa Planning and Development Department prior to performing any work to correct the easement road modifications by appropriate means.

Governing Rule: ARS § 32-1154(A)(2)(B) ARS § 32-1154(A)(3)

On or about March 17, 2021, Investigator Fagerburg issued a Warning Letter to Respondent indicating that Respondent had not obtained the necessary building permits for the project on Complainant’s property.

Following the issuance of the written directive, Investigator Fagerburg allowed a two-week extension of the deadline in the directive, which resulted in a new deadline of May 3, 2021.

Following the issuance of the written directive, Respondent performed no corrective work on Complainant’s property and did not obtain the required permit. After the extended deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); 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 to convene on July 27, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The hearing in this matter was continued and convened at 9:00 a.m. on August 25, 2021. Complainant testified on her own behalf and submitted four exhibits.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Fagerburg testified that because Respondent extended the gravel roadway beyond the limits of the easement, the public was able to access and park on Complainant’s private property. Investigator Fagerburg stated that Respondent had not obtained a permit as of the date of the hearing.

Complainant testified that she walked the property with Respondent prior to it performing any work on the project. Complainant stated she attempted to work with Respondent on a couple occasions without success. Complainant detailed the damage to her property including damage to plants and her water line, which her son-in-law fixed for her. Complainant also indicated that the turn outs on the property are beyond the 20 foot easement and the public can now park on her property.

Administrative notice is taken of Respondent’s prior License record on September 13, 2021. Such prior License record reflects that Respondent’s License No. 294631 was first issued on October 17, 2014, and was active. Such prior License record also reflects that there were no other 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 performed work on the project without required permits having been issued by the Maricopa County Building Department. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(2)(b).

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(A).

The evidence established that Respondent did not attempt to 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. 294631 for a period of five 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, September 13, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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