ALJDEC decisions subject to certification as final

2022A-01358-CHC-ROC · Registrar of Contractors · 2022-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lydia Marie DiMartino,

COMPLAINANT

AJ's Masonry, LLC

License No. ROC 212369,

RESPONDENT

No. 2022A-01358-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 2, 2022

APPEARANCES: Complainant Lydia Marie DiMartino appeared on her own behalf with her husband, Richard DiMartino. Angel Martinez appeared on behalf of Respondent AJ’s Masonry, LLC. Jasmine Aguirre, Mr. Martinez’s daughter, was also present. Arizona Registrar of Contractors Investigator Lisa Melton appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

AJ’s Masonry, LLC (“Respondent”) is the holder of License No. 212369 issued by the Arizona Registrar of Contractors (“Registrar”). Angel Martinez is a Member of Respondent.

On or about October 11, 2021, Lydia Marie DiMartino (“Complainant”) contracted with Respondent for Respondent to perform masonry work in Complainant’s backyard. The contract specified: i) the removal of existing deco drains to reinstall new drains or three drain boxes; ii) demolition of three existing block walls to extend the patio; iii) construct two section walls out of masonry block with a 4’ side gate with wood to match the RV gates; iv) install 98 linear feet of travertine coping with bullnose around the pool; v) install 130 linear feet of travertine pavers on all wall caps; and vi) install 1,501 square feet of three piece travertine versai pattern pavers on main patio and around pool decks. The contract price, after the deletion of the wall caps and with a $400.00 discount for payment in cash, was $21,666.00. Complainant paid Respondent a total of $16,500.00.

On or about February 17, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work, as well as a failure to complete the project.

The Registrar assigned the Complaint to Investigator Lisa Melton. After an April 11, 2022 Jobsite Inspection, Investigator Melton issued a Written Directive to Respondent, dated April 14, 2022, 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 May 5, 2022.

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

Compliance Item 3: Damaged artificial turf

Investigator’s Observation: Small portion of turf where construction material/debris is on the turf. This area was not removed/reinstalled by other than Respondent. Respondent’s work is not complete. Respondent should complete their scope of work and correct this condition by appropriate methods.

Compliance Item 4: New gate not installed

Investigator’s Observation: Respondent’s work is not complete. Respondent should complete their scope of work by appropriate methods.

Compliance Item 5: Did not install bullnose edge agreed upon

Investigator’s Observation: Contract calls out travertine coping with bullnose. Bullnose was not installed. Respondent stated that parties verbally agreed to this but there is insufficient evidence (change order) to substantiate that the parties agreed to the change. Respondent should correct by appropriate methods.

Compliance Item 6: Outside edge of pavers not cut properly

Investigator’s Observation: Respondent’s work is not complete. Respondent should complete their scope of work by appropriate methods.

Compliance Item 9: Pavers not sanded in areas

Investigator’s Observation: Respondent’s work is not complete. Respondent should complete their scope of work by appropriate methods.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item 1: New drains were not properly back filled

Investigator’s Observation: Backfill was completed by other than the Respondent at the direction of the Complainant. Work has been modified. See Item #10.

Compliance Item 2: Did not re-install artificial turf

Investigator’s Observation: Reinstallation of turf was completed by other than the Respondent at the direction of the Complainant. Work has been modified. See Item #10.

Compliance Item 7: Removed wall after told not to

Investigator’s Observation: Verbal agreement. Insufficient evidence to substantiate.

Compliance Item 8: Drain cover did not match – brought new one

Investigator’s Observation: Not a workmanship issue that can be inspected/evaluated.

Compliance Item 10: Had to pay to have backfill & artificial turf re-installed

Investigator’s Observation: Financial matter outside of the Registrar’s authority.

All errors in original.

On May 11, 2022, subsequent to the expiration of the deadline contained in the Written Directive, Complainant emailed Investigator Melton to advise that Respondent had not performed any of the required corrective work. After receiving the May 11, 2022 email from Complainant, Investigator Melton contacted Respondent and was informed that Respondent intended to perform the corrective work within “the next week or two.” Investigator Melton advised Respondent that because the deadline in the Written Directive expired, she could not compel Complainant to allow Respondent access to perform the corrective work. Consequently, Investigator Melton forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); 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.

Investigator Melton testified consistently with the findings contained in the Written Directive and the Jobsite Inspection Notes. Investigator Melton testified specifically that the gate had not been installed and that there was a small area of damage to the turf near the pool deck. Investigator Melton further testified that she was told that there was an issue with obtaining the bullnose, and instead, Respondent sanded the edge in order to achieve a curved appearance. Regarding the pavers, Investigator Melton testified that there are rough edges and voids, and that the work is not complete.

Complainant testified about the photographs she submitted into evidence depicting the poor workmanship, specifically the coping, paver edges, the pavers, and the damage to the turf.

Complainant took issue with Investigator Melton’s finding regarding Complaint Number 7 concerning the removal of the wall. Complainant credibly testified that the parties’ contract called for the demolition of three existing block walls to extend the patio and Respondent removed four walls which included a retaining wall that she specifically told Respondent not to remove.

Mr. Martinez testified that he was ill with COVID and pneumonia in October 2021, for two months, and is still suffering the effects. Mr. Martinez asserted that he has a small business and “has been trying.” Mr. Martinez blamed his failure to complete the project and perform corrective work on a shortage of materials and the length of time it took to import them from Mexico, and further testified that the three week timeframe provided in the Written Directive was not long enough. Mr. Martinez testified that he wants to complete the work and that Respondent has been in business more than twenty years and has never had a complaint filed against its license.

Administrative notice is taken of Respondent’s prior License record on August 4, 2022. Such prior License record reflects that Respondent’s License No. 212369 was first issued on October 27, 2005, 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 evidence of record established that Respondent did not complete its scope of work pursuant to the terms of the parties’ contract and abandoned the project without legal excuse. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Complainant established that Respondent did not perform all work in accordance with professional industry standards as Complainant established that Respondent failed to use skills, prudence, and diligence in performing and completing its scope of work to meet the standards of a similarly licensed contractor possessing ordinary skill and capacity. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. Respondent did not establish, as an affirmative defense, valid justification for its failure to comply with the Written Directive. 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. 212369 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, August 5, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary

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