ALJDEC decisions subject to certification as final

2022A-02545-CHC-ROC · Registrar of Contractors · 2022-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Crosspoint Contracting LLC,

COMPLAINANT

Commercial Paving Southwest Division LLC

License No. ROC 332338,

RESPONDENT

No. 2022A-02545-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 1, 2022

APPEARANCES: Clifford Zillweger appeared via Google Meet on behalf of Complainant Crosspoint Contracting LLC. Lushie Stanley appeared via Google Meet on behalf of Respondent Commercial Paving Southwest Division LLC. Registrar of Contractors Investigator John Peru appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Commercial Paving Southwest Division LLC (Respondent) is the holder of License No. 332338 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 13, 2021, Crosspoint Contracting LLC (Complainant) contracted with Respondent to finish paving a commercial parking lot on which they were working for the property owner.

On or about March 29, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Peru. The jobsite inspection was performed on April 19, 2022.

Investigator Peru then issued a written directive on or about April 20, 2022, 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 05/16/2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "The pavement has places where the grass from below is growing through. They came back (03/05/2022) to seal from what he, Lushie called dry mix to seal the lot and they were supposed to fix the grass spots and they did not fix them, and just sealed."

Investigator’s Observation: Verified.

At the time of this Inspection there are multiple areas on the pavement where grass is growing through (reference Pics# 9-12).

Does Not Meet Workmanship Standards; correct by appropriate means.

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.

In addition to Compliance Item: 1, The Complainant pointed out multiple Rough Spots/ Rough Patches, and Raised Edges along the building and perimeter fence line that are crumbling/separating.

Does Not Meet Workmanship Standards; correct by appropriate means.

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.

(All errors contained in the original).

On May 20, 2022, 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).

On or about May 31, 2022, Respondent filed an Answer with the Registrar.

On or about June 21, 2022, a Notice of Hearing was issued setting a hearing on August 1, 2022, at the Office of Administrative Hearings, an independent state agency.

Investigator Peru testified as to the Registrar’s involvement, the above timeline and his findings on the Directive.

Investigator Peru testified that Mr. Stanley failed to appear at the Jobsite Inspection. Investigator Peru testified further that although he had no prior experience in paving, he knew that grass should not have been growing through the asphalt and that rough spots and raised edges were not within workmanship standards.

In addition, Investigator Peru that once Respondent began working on the project it had accepted the surface, and therefore was responsible for any work performed on that surface.

Finally, Investigator Peru testified that Respondent never completed the job, because he wanted to come to a settlement with Complainant and property owner, however, because the same was not finalized, therefore, the Citation was issued.

Clifford Zillweger, Bryce Zillweger and Mike Hughes testified on behalf of Complainant.

Clifford Zillweger testified that once he discovered that the previous person they hired to pave the lot was unlicensed, they hired Respondent to complete the job. He testified further that to his knowledge nobody forced Mr. Stanley to complete the job.

Bryce Zillweger testified that Mr. Stanley pulled up the pavement and did the dirt work. He testified further that the trench was dug a week before Mr. Stanley arrived, that that Mr. Stanley stated that it would not be a problem to pave the lot.

Mike Hughes testified that three days into the project, he found out that “Eddie” was not licensed, but said that his “uncle (Mr. Stanley) was here and we could use his license.” Mr. Hughes testified further that Eddie and Mr. Stanley pulled up the old pavement and brought in new gravel.

Lushie Stanley testified on behalf of Respondent. He testified generally that he had been in business for 35 years. Further, Mr. Stanley stated that from the day after Thanksgiving until April, he runs his business in Arizona and for the remainder of the year he conducts business in Maine. Mr. Stanley testified that he refused to let Jacob use his license so he decided to come to Arizona to perform the project.

Mr. Stanley testified that he had to “re-grade” the whole lot because they dug the trenches. Further, Mr. Stanley testified that when he came to the project on December 13, 2021, “Eddie” was backing gravel out and they were putting in the underground lines. Mr. Stanley testified Bryce Zillweger told him that the lot had to be paved 3 days later. Mr. Stanley testified that he followed their instructions although he stated that he would have preferred to let the gravel sit 30 days to settle. Had this occurred, Mr. Stanley said there would have been no grass and there would have been no dips and rough sports.

In addition, Mr. Stanley testified that he offered to put the sealer on March 5, 2022, and then come back in the fall to re-pave the entire lot. He believed that there was a “handshake deal” with the owner, but this case moved forward.

Finally, Mr. Stanley testified that he would do whatever it takes to correct the lot.

Administrative notice is taken of Respondent’s prior License record on August 16, 2022. Such prior License record reflects that Respondent’s License No. 332338 was first issued February 22, 2021, and reflects that there was one open complaint, namely the present complaint.

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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Grass was growing up through the asphalt and there were rough spots. Further, Mr. Stanley did not dispute these issues, rather, he asserted that it was because the gravel did not settle first. Also, while the tribunal appreciates Mr. Stanley wanting to help out on the project, if he knew that the gravel was not ready to be paved then he should not have completed the same. 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 Respondent failed to complete the corrective work following the Directive being issued. The tribunal is not persuaded by Mr. Stanley’s assertion that there was a deal to have him re-pave the lot in the fall. 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. 332338 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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 30 days from the date of that certification.

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-137160-45720000Done this day, August 15, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary