ALJDEC decisions subject to certification as final
2022A-03524-CHC-ROC · Registrar of Contractors · 2022-09-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Joseph Altamirano
COMPLAINANT,
v.
Turf Monsters, LLC
License No. ROC 323643,
RESPONDENT.
No. 2022A-03524-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 24, 2022
APPEARANCES: Complainant represented himself. Mark Bandarett represented Respondent Turf Monsters, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On July 15, 2022, the Registrar of Contractors, (ROC),
issued a Notice of Hearing setting the above-captioned matter for hearing on August 24, 2022, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
Turf Monsters, LLC (Turf Monsters) holds a CR-21 Hardscaping and
Irrigation Systems issued by the ROC (license number 323643).
The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Turf Monsters may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) R4-9-108(a); A.R.S. section 32-1154(A)(16) and (22).
4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Turf Monsters’s license.
5. On or about September 16, 2021, Complainant Joseph Altamirano and Turf Monsters entered into a residential construction contract for the amount of $24,398.77, wherein Turf Monsters would install a pergola at Mr. Altamirano’s home.
6. On or about February 15, 2022, Turf Monsters started work on
Mr. Altamirano’s home.
7. On or about March 29, 2022, Turf Monsters stopped work on
Mr. Altamirano’s home.
8. Mr. Altamirano paid Turf Monsters $16,000.00 for the project.
9. Mr. Altamirano subsequently filed a complaint with the ROC alleging abandonment on the part of Turf Monsters.
10. On or about May 23, 2022, ROC Investigator Michael Wiskow conducted a job-site inspection. Investigator Wiskow observed that Turf Monsters installed a pergola that was attached to Mr. Altamirano’s home. Investigator Wiskow also observed that Turf Monsters started the work without a builder’s permit.
11. On May 24, 2022, Investigator Wiskow issued a Directive to Turf Monsters. The May 24, 2022Directive provided, in relevant part, as follows:
The June 28, 2022 Directive provides, in relevant part, as follows:
Compliance Item: 1 - Pergola was started without a permit causing the city of Phoenix to issue a stop work order.
Investigator’s Observation: Pergola was constructed without a permit. The Pergola appears to be substantially completed.
Contractor should obtain necessary permits and finish project per contract.
Governing Rule: 3.Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.
12. The due date for compliance under the Directive was June 8, 2022. Turf Monsters did not correct the items listed in the Directive.
13. On June 16, 2022, Investigator Wiskow conducted a compliance job-site inspection. Investigator Wiskow observed that Turf Monsters had not completed the Directive.
14. On June 21, 2022, the ROC issued a Citation against Turf Monsters’s license for alleged violations of A.R.S. sections 32-1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) R4-9-108(a); A.R.S. section 32-1154(A)(16) and (22).
15. Turf Monsters filed a timely answer to the Citation.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. At hearing, Mr. Altamirano testified on behalf of himself. Investigator Wiskow testified regarding his job site inspections and issuance of the Directive. Michael Freeland and Mark Bandarett testified on behalf of Turf Monsters.
18. Mr. Altamirano stated that Turf Monsters performed poor work. Mr. Freeland and Mark Bandarett asserted that Mr. Altamirano agreed to obtain the permit for the project.
19. Investigator Wiskow explained that Turf Monsters contracted and performed work outside the scope of his license due to the amount of the project and because a CR-21 license does not allow a contractor to build a structure attached to a house. Investigator Wiskow explained that Turf Monsters should not have started work on the home without obtaining the builder’s permit.
20. I find Investigator Wiskow’s testimony to be credible.
21. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on September 13, 2022, Turf Monsters’s license was first issued on February 22, 2019, and is active. Such prior License record also shows that there is only one open complaint against Turf Monsters. Turf Monsters’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that Respondent contracted and performed work outside of the scope of its CR-21 Hardscaping and Irrigation Systems license.
7. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the ROC’s Directive without valid justification, which is a 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 Turf Monsters, LLC’s license number 269649 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, September 13, 2022.
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 is forty days after the date of that certification.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary