ALJDEC decisions subject to certification as final

2022A-05146-CHC-ROC · Registrar of Contractors · 2022-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gerald Roy Maire

COMPLAINANT,

Daybreakers, LLC

DBA: A B Concrete Construction

License No. ROC 155897,

RESPONDENT.

No. 2022A-05146-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2022

APPEARANCES: Complainant Gerald Roy Maire (Complainant) appeared on behalf of himself. Tammy Acton appeared on behalf of Respondent Daybreakers, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant Gerald Roy Maire purchased a new home located at 3308

Rusty Spur Avenue in Kingman, AZ.

2. Respondent constructed the concrete driveway connected to the home in or around October of 2020.

3. On or about June 24, 2022, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Respondent. Specifically, Complainant complained, “machinery imprints in driveway form saw cuts. footprints.” See the Registrar’s Administrative Record, pgs. 37 and 38.

4. On or about July 9, 2022, Registrar Investigator Cliff Corlett conducted a job-site inspection.

5. On or about July 15, 2022, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:

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

Complaint Allegation: 1 - Machinery imprints in driveway from saw cuts and footprints.

Investigator’s Observation: Driveway finish is damaged by saw cut machinery and by workman's boot prints. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

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.

6. On August 15, 2022, Investigator Corlett conducted a job-site inspection. Investigator Corlett observed that Respondent took efforts to minimize the surface damage, but the problem still existed. Investigator Corlett explained that the problems were cosmetic and the installation was adequate. Investigator Corlett stated that the damage occurred during the saw cutting of the control joints by the machinery.

7. On September 20, 2022, the Registrar issued a Citation against Respondent alleging that Respondent had violated Arizona Revised Statues (A.R.S). § 32-1154 (A)(3) and (22); Arizona Administrative Code R4-9-108(A).

8. Respondent filed a timely answer to the Citation.

9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

10. A hearing was held on October 28, 2022.

11. At hearing, Mr. Maire testified on behalf of himself and presented the testimony of his wife, Dawna Maire. Tammy Acton and William Blaine Acton, both owners of Respondent, testified on behalf of Respondent.

12. Mr. and Mrs. Maire explained that Respondent performed poor work when is constructed the concrete driveway.

13. Ms. Acton explained that over time, the prints would fade. Ms. Acton contended that the driveway is structurally sound and the problems are solely related to appearance. Mr. Acton explained that when a concrete driveway is constructed, at times, a soft wheel will “show up.” Mr. Acton also stated that the tracks were caused by other people. However, Mr. Acton testified to the effect that over time, the cracks will become less visible.

14. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on November 17, 2022. Respondent’s license was first issued on July 6, 2000, and is active. Such prior License record shows that the Registrar has never disciplined Respondent’s license. The lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’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).

Having considered the evidence presented at hearing, the Administrative

Law Judge concludes that the preponderance of the evidence shows that the issues found by Investigator Corlett demonstrate that Respondent failed to perform construction work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

5. The preponderance of the evidence showed that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 Daybreakers, LLC DBA: A B Concrete Construction

License No. ROC 155897, 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. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, November 17, 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 will be 40 days from the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Daybreakers, LLC

DBA: A B Concrete Construction

8005 N SHIPPING LN

[email redacted]

Gerald Roy Maire

3308 Rusty Spur

Kingman, AZ 86409

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary