ALJDEC decisions subject to certification as final

2021A-03452-CHC-ROC · Registrar of Contractors · 2022-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Aaron Jeffery Rothchild,

COMPLAINANT

Cardiel's Concrete & More, LLC

License No. ROC 326235,

RESPONDENT

No. 2021A-03452-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 29, 2022

APPEARANCES: Complainant Aaron Jeffery Rothchild appeared on his own behalf with his wife, Susan Rothchild. Angel Cardiel appeared on behalf of Respondent Cardiel’s Concrete & More, LLC. Arizona Registrar of Contractors Assistant Chief of Compliance Randy Cason appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Cardiel’s Concrete & More, LLC (“Respondent”) is the holder of License No. 326235 issued by the Arizona Registrar of Contractors (“Registrar”). Angel Cardiel is Respondent’s Qualifying Party and Member.

On or about June 16, 2021, Aaron Jeffery Rothchild (“Complainant”) contracted with Respondent for Respondent to install a decorative concrete stamp finish on an existing patio extension and to remove and replace a second section of concrete with a decorative concrete stamp finish.

On or about July 23, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Steve Lawton. After an August 26, 2021 Jobsite Inspection during which photographs of Respondent’s work were taken and which are contained in the Administrative Record, Investigator Lawton issued a September 10, 2021 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 October 1, 2021.

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

Complaint Item 1: Concrete stamp is subpar and some areas have little or no stamp to include overlapped sections, deep gouges, double lines and some areas are crooked.

Investigator’s Observation: It was observed and verified that stamping was not of industry standards and has little or no stamping in areas. Also, it was observed and verified that there were over lapped areas, deep gouges, double lines, with areas that had double lines.

Complaint Item 2: They applied a clear coat sealer with not repairs being made and dark brown second tone was not added.

Investigator’s Observation: It was observed and verified that the epoxy installed did not have a dark brown hue to it at time of inspection.

All errors in original.

Following the issuance of the Written Directive, and after the expiration of the deadline delineated in the Written Directive, on October 5, 2021, Complainant emailed Investigator Lawton to inform him that Respondent had not performed any corrective work. Investigator Lawton thereafter referred the matter to the Registrar’s Legal Department for the issuance of a Citation.

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), 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.

A prehearing inspection was conducted on January 11, 2022, at which time it was determined that the matter had not been resolved.

The hearing of this matter was scheduled to convene on January 14, 2022, at 1:00 p.m. On the date and time set for hearing, Complainant appeared on his own behalf with his wife, Susan Rothchild. Angel Cardiel appeared on behalf of Respondent. Assistant Chief of Compliance for the Registrar, Randy Cason, was present.

The parties participated in a lengthy pre-hearing discussion outside the presence of the Administrative Law Judge. As a result of that discussion, the parties entered into a settlement agreement, however needed additional time to execute the agreement. The Administrative Law Judge continued the hearing and set the matter for a Status Update by February 25, 2022.

On February 25, 2022, Complainant notified the Tribunal that the parties’ attempts at resolving the matter were unsuccessful and requested that the matter be set for hearing.

The matter was set for continued hearing on March 29, 2022, at 1:00 p.m. On the date and time set for continued hearing, Complainant appeared on his own behalf with his wife, Susan Rothchild. Angel Cardiel appeared on behalf of Respondent. Investigator Cason was present.

Investigator Cason testified that Investigator Lawton is no longer with the Registrar’s office, and therefore, he acquired the case. Investigator Cason testified that on March 14, 2022, he received a call from Complainant expressing concern that the work performed by Respondent pursuant to the parties January 14, 2022 agreement, was not properly or timely performed.

On March 22, 2022, Investigator Cason performed a prehearing inspection. Investigator Cason explained that the parties had agreed that the work would be performed within 45 days of January 14, 2022, and notwithstanding such agreement, Respondent delayed starting the work until the 44th or 45th day. The concrete had been removed and a new slab was poured, however, the work was not complete. Investigator Cason testified that Respondent indicated that it would complete the work the following day, as well as paint the stucco that needed to be patched due to damage caused during the removal of the concrete. Investigator Cason opined that there were only “minor flaws” remaining that needed correction, as well as some “minor” corollary damage caused by the removal of the concrete.

Investigator Cason testified that at the March 22, 2022 prehearing inspection, the parties agreed that Respondent would perform the remaining work on March 24, 2022. However, on March 23, 2022, Complainant locked the gate and notified Investigator Cason and Respondent that Complainant would not allow Respondent to complete the work.

At the March 29, 2022 hearing, the Administrative Law Judge explained to the parties that the purpose and scope of the hearing was to address the alleged statutory violations by Respondent as charged by the Registrar in the Citation and as alleged in the filed Complaint. Notwithstanding such, both Complainant and Respondent focused their respective case presentations and testimony on the events and work that occurred after the January 14, 2022 prehearing discussion.

Complainant testified that after the January 14, 2022 prehearing discussion, Respondent contacted him on January 24, 2022, in order to ensure that the gate was unlocked and that Respondent could access the patio area. Respondent did not perform any work until February 3, 2022. On February 3 and 4, 2022, Respondent removed the existing slab and damaged the Alumawood patio cover posts and the stucco walls in the process of removal. On February 24, 2022, Complainant contacted Respondent to inquire as to when the pile of concrete debris would be removed. On February 25, 2022, the concrete debris was removed. Respondent did not set the forms for the new concrete pour until the 45th day, which was the last day for the project to be completed pursuant to the terms of the parties’ settlement agreement. Complainant testified that Respondent told him that the concrete would be poured on February 26, 2022, which was delayed to February 28, 2022, which was delayed until March 1, 2022. The concrete was poured on March 3, 2022.

Complainant testified that there was concrete splatter on the entire back of the house, on the windows and screens, as well as the patio posts and cover. Complainant explained that he “was trying to be a good guy and give extra time,” however, by March 23, 2022, he did not want Respondent back to his home anymore “to cause more damage.” Complainant questioned when his obligation to have Respondent perform additional work ends. Complainant referenced several photographs that depict Respondent’s poor workmanship, including chipped edges, hash marks and grooves, rough texture, indentations, and patches and grinder marks.

Complainant explained that he decided not to allow Respondent back after March 23, 2022, because Respondent had contacted him to say that he could not perform the remainder of the work on March 24, 2022, as promised at the prehearing inspection, and also could not return to the property on March 25, 2022. It was at that point that Complainant decided that his obligation to allow Respondent repeated opportunities to complete the project, would end.

Mr. Cardiel testified that the he believes the initial Complaint was filed because Complainant was dissatisfied with Respondent’s communication. Mr. Cardiel further testified regarding the delays in the post-January 14, 2022 work, including delays in obtaining a dumpster, rain delays, and concrete delays. Mr. Cardiel explained that he waited until five weeks after the parties’ January 14, 2022 agreement to commence work because he “had a big job” he was working on and that it is “hard to pull off a job to do another job.” Mr. Cardiel further asserted that Complainant was upset because he wanted color added to the concrete, however, their agreement did not call for color to be added.

Mr. Cardiel further testified that he offered to help Complainant with the patio cover and offered to pay for the materials to patch the stucco and paint. Mr. Cardiel asserted that many of the alleged deficiencies with the concrete were due to efflorescence and the curing process. Mr. Cardiel testified that efflorescence “always makes concrete look rough.”

Mr. Cardiel acknowledged that the work was performed beyond the agreed upon deadline and testified that he attempted to perform the work pursuant to the parties’ agreement, however, Complainant locked the gate. Mr. Cardiel contended that Complainant will never be satisfied, that Complainant was attempting to direct the work on the project, and that Complainant “picks things apart.” Mr. Cardiel also testified that Complainant stopped responding to his communications.

Mr. Cardiel testified that his license is his livelihood, that Respondent complied with the Written Directive, was denied access, and “tried everything to get it done.”

Administrative notice is taken of Respondent’s prior License record on April 1, 2022. Such prior License record reflects that Respondent’s License No. 326235 was first issued on September 18, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The credible and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Lawton verified workmanship deficiencies at the initial jobsite inspection, documented those deficiencies with photographs, and issued a Written Directive requiring Respondent to remedy those deficiencies in a specified timeframe. 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 credible and probative evidence of record established that Respondent did not complete the corrective work following the Written Directive being issued. The Written Directive specified that the required corrective work was to be completed by October 1, 2021. Respondent failed to do so. There was no evidence presented establishing that Complainant denied access to Respondent for the performance of the required work during the period of the Written Directive. Complainant was under no obligation to continue to allow Respondent to perform work after the expiration of the time frame set forth in the Written Directive. The parties were provided with the Registrar’s “A Guide to Written Directives” which contains the following pertinent information:

“Work performed after the directive ends: After the Directive period ends, a property owner may choose to allow the contractor to continue its work. The Registrar encourages parties to work cooperatively, but cannot require a homeowner to continue to allow a contractor access to the property after the Directive period ends in order for the administrative process to continue. Denying access after the Directive ends is not grounds to close or dismiss a complaint.”

Emphasis in original.

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. 326235 for a period of five (5) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, April 6, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By: Miranda Alvarez

Legal Secretary