ALJDEC - Licensing

2022A-03671-CHC-ROC · Registrar of Contractors · 2023-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brock Merchant,

COMPLAINANT

v.

Caleb Charles K Ferguson

DBA: Road Tech Paving

License No. ROC 320921,

RESPONDENT

No. 2022A-03671-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 21, 2023

APPEARANCES: Complainant Brock Merchant appeared via Google Meet on his own behalf. Marc Saric appeared via Google Meet on behalf of Respondent Caleb Charles K Ferguson. Registrar of Contractors Investigator Jim Dimond appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Caleb Charles K. Ferguson DBA: Road Tech Paving (Respondent) is the holder of License No. 320921 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 22, 2022, Brock Merchant (Complainant) signed a contract with Respondent for repaving of the mobile home park owned by the Vista Del Sol Villas LLC. The contract amount was for $55,000.00 and was paid in full.

On or about May 5, 2022, the Registrar received a Complaint containing thirteen items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Thomas and later reassigned to Investigator Jim Dimond. The jobsite inspection was performed on June 10, 2022.

Investigator Dimond then issued a written directive on or about August 15, 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 September 6, 2022.

. . .

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

Compliance Item: 1 - Road was swept quickly and poorly by hand, not by a sweeper or washed. Contractor told us that this was just fine and didn't require a thorough sweeping. It was very dirty

Investigator’s Observation: I cannot verify the condition of the surface prior to the project however, the product shows significant delamination from the surface. The respondent shall ensure that the surface is properly prepped prior to making the corrections directed.

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.

Compliance Item: 2 - Places that were missing asphalt were not patched before spraying tar, it was applied directly to the dirt in these places.

Investigator’s Observation: There are numerous areas that exhibit dirt in the product. Additionally, there are numerous areas throughout that the existing surface wasn't prepared resulting in surfaces of different elevations.

The respondent shall ensure that the surface is properly prepped prior to making the corrections directed

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.

Compliance Item: 3 - Tar did not completely cover the surface of the existing road, bare spots and streaks were left. The road was left to cure for much longer than suggested by the contractor before any sweeping or anything was done.

Investigator’s Observation: It appears that the oil was spread using equipment that wasn't operating properly as it appears that the oil was unevenly distributed. The resulted in a surface that did not properly adhere to the binding oil. The surface throughout has loose rock and the entire project does not resemble a project that was only 3 months old. The surface looked like it was 10 years old. The respondent is to correct the entire surface to a condition that is the norm of the industry in an appropriate manner.

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.

Compliance Item: 4 - Once lightly swept, to prepare for a fog coat, chip seal started to come up sporadically;

Investigator’s Observation: The installed surface did not adhere as necessary and the respondent is to correct the condition in an appropriate manner.

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.

Compliance Item: 5 - The edges of the road look like a disaster;

Investigator’s Observation: There are numerous areas of loose chips at the edges as well as numerous areas that should have been built up prior to surfacing the full width of the roadway. The respondent is to correct the condition in an appropriate manner.

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.

Compliance Item: 6 - There are places with little to no tar and others are 1/2 inch or so taller where more tar was applied

Investigator’s Observation: As the allegation states, there are numerous areas of uneven oil application resulting in an extremely poor surface. The respondent is to correct the condition in an appropriate manner.

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.

Compliance Item: 7 - It looks like there are lanes down the middle or side of the road where way more tar was sprayed.

Investigator’s Observation: This allegation is addressed above.

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.

Compliance Item: 9 - One of the two manhole covers was sprayed over.

Investigator’s Observation: There are 2 sewer manhole covers that are in the affected road surface. Both have the chip seal surface over them however the one at the west end of the project is significantly covered. The respondent is to correct the condition in an appropriate manner.

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.

Compliance Item: 11 - There was almost an inch of loose gravel on top of the road in some areas

Investigator’s Observation: There is loose gravel all over the surface and in the center parking area by the mailboxes, there is a large amount of chips spread out and is several inches deep. This is further support that very little of the product actually adhered to the road surface. This item as written is not a violation per se but as stated, supports that the road surface received insufficient coverage.

Governing Rule: violation are addressed above

Compliance Item: 12 - This is a mobile home park and community of 50 residents, it is important that the road be in good condition

Investigator’s Observation: This statement is informational in nature however the new 'road surface' is deficient and not in good condition after 3 months.

Governing Rule: Violations are addressed above.

Compliance Item: 13 - The contract used by the respondent doesn't comply with state statute

Investigator’s Observation: The contract does not contain the following:

32-1158.A.(4) an approximate completion date

32-1158.A,(8) (in part) does not display applicable taxes paid

32-1158.A.(9) The notice to the public of the right to file an ROC complaint.

Governing Rule: ARS 32-1155.A.12 (namely ARS 32-1158.A).

(All errors contained in the original).

On September 8, 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); A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about October 13, 2022, a Notice of Hearing was issued setting a hearing on November 18, 2022, at the Office of Administrative Hearings, an independent state agency.

After a few continuances, the hearing commenced on July 21, 2023.

At hearing, Investigator Dimond testified as to his involvement and the above timeline.

Investigator Dimond testified that while there was no prehearing inspection, he drove the property on July 19, 2023, and noticed that the corrective work had not been completed.

Further, Investigator Dimond testified that he believed that the time to complete the Directive was sufficient.

Investigator Dimond also testified that the contract did not include a fog coat and that he was aware that another contractor came to the property to sweep away loose gravel.

Finally, Investigator Dimond testified that to date, Respondent had not provided a copy of a contract that complies with the statute.

Complainant testified on his own behalf. He testified that he was the trustee of the trust which owned the company that owned the mobile home park.

Complainant testified that some areas had up to three inches of loose gravel and that another contractor (Joe Perez) swept away the same. Complainant testified that there were about five trailer load of loose gravel which had to be hauled away.

Further, Complainant testified that Respondent offered to come back to the jobsite and make the repairs, however he never completed the same as Complainant wanted to wait until the weather was warmer to make the repairs.

Finally, Complainant stated that he just wanted the paving completed correctly as it looks as bad as it did prior to hiring Respondent.

Respondent testified on his own behalf.

Respondent testified that he wanted to fix the work, but that Complainant wanted to wait until the Registrar came to inspect. Further, Respondent testified that he tried to the corrective work in April when it was hot, but Complainant refused.

Administrative notice was taken of Respondent’s prior License record on August 7, 2023. Such prior License record reflected that Respondent’s License No. 320921 was first issued on July 19, 2018, and reflected 1 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 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 preponderance of the evidence established that Respondent’s work as to items 1, 2, 3, 5, 6, 7, 9, 11, and 12 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. As to item 4, the loose gravel, because another contractor performed the sweeping, it cannot be determined if the loose gravel was caused by the act of the sweeping or Respondent’s work. Therefore, the tribunal finds no violation for this item.

The preponderance of the evidence also established that the parties contract did not include an approximate completion date, did not display the applicable taxes paid, and did not contain the “right to file” language”. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued as to the windows. 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. 320921 for a period of ten 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that Respondent shall provide an updated sample contract, which complies with A.R.S. § 32-1158, to the Registrar with in thirty days of the final order. If Respondent fails to provide the same, the Registrar revoke Respondent’s license, effective on such deadline date.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, August 7, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Mark G. Saric, Esq.

Resolvere Law PLLC

3101 N Central Ave., Suite 304

Phoenix, AZ 85012

[email redacted]

Brock Merchant

1630 E. Coconino St. Lot 25

Cottonwood, AZ 86326

[email redacted]

By: OAH Staff