ALJDEC - Licensing
2022A-05422-CHC-ROC · Registrar of Contractors · 2023-02-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kyle Donahue ,
COMPLAINANT
v.
Candelario Mendoza
DBA: Diamond Masonry & Landscape
License No. ROC 209083,
RESPONDENT
No. 2022A-05422-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 20, 2023, 9:00 A.M.
APPEARANCES: Complainant Kyle Donahue appeared on his own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Candelario Mendoza, DBA Diamond Masonry & Landscape (Respondent), is the holder of License Number 209083 issued by the Registrar of Contractors (Registrar).
2. On or about July 5, 2022, Kyle Donahue (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with paving work performed by Respondent at a residence in Surprise, Arizona (“project”).
3. The Registrar performed an inspection of the project on July 28, 2022. Thereafter, the Registrar issued a Directive, dated July 29, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by August 19, 2022, as follows:
Compliance Item: 1: Front of house: pavers not laying flat. Area closest to front door.
Investigator’s Observation: There is lippage between bricks that
exceeds the minimum workmanship requirement. There should be no more than 1/8” difference in height between adjacent pavers.
Contractor should repair by appropriate means.
Compliance Item: 2 - Lack of silica sand(or different sand
Investigator’s Observation: Throughout the project there is sand
missing from in between the the bricks. Contractor should verify these areas.
Contractor should repair by appropriate means.
Compliance Item: 4 - Left side of driveway: irrigation line leaking where
they cut it during construction;
Investigator’s Observation: There was evidence of an irrigation leak on
the left side of the driveway. The contractor agreed it was a cut irrigation line.
Contractor should repair by appropriate means.
Compliance Item: 6 - Right side of driveway: pavers sticking up in areas
Investigator’s Observation: There is lippage between bricks along the
right edge of this area that exceeds the minimum workmanship requirement. There should be no more than 1/8” difference in height between adjacent pavers.
Contractor should repair by appropriate means.
Compliance Item: 9 - Path: pavers settling wavy, dipping where handtamped,
Investigator’s Observation: There are low spots in the middle of the
paths. Excessive deviations, dips or sags over short distances are considered unacceptable.
Contractor should repair by appropriate means.
Compliance Item: 11 - Path: border settling
Investigator’s Observation: There is lippage between several pieces
bordering the paths that exceeds the minimum workmanship requirement.
There should be no more than 1/8” difference in height between adjacent
pavers.
Contractor should repair by appropriate means.
Compliance Item: 12 - Back corner by house: settling, pooling water during rain
Investigator’s Observation: There is a low spots in the corner to the left
of the patio door. Excessive deviations, dips or sags over short distances are considered unacceptable.
Contractor should repair by appropriate means.
Compliance Item: 13 - Back doorway: pavers directly on concrete stoop,
settling around this area where concrete ends
Investigator’s Observation: There is lippage at the area between where
the bricks rest on concrete that transitions to base/sand.
There should be no more than 1/8” difference in height between adjacent
pavers.
Contractor should repair by appropriate means.
Compliance Item: 14 - Side of patio: pavers all along west side of patio
settling
Investigator’s Observation: There is lippage along the inside of the
boarder bricks. There should be no more than 1/8” difference in height between adjacent pavers.
Contractor should repair by appropriate means.
Compliance Item: 18 - Path on east side is not parallel to the structure.
Investigator’s Observation: The plan calls for a path on the east side of
the structure that is parallel to the structure. It is currently 44 inches on one end and 51inches on the other end approximately 20 feet away.
The sidewalk should be installed per site plan.
4. When Respondent responded that he could not find the correct pavers to do the corrective work, the Registrar closed the Complaint.
5. When Complainant thereafter indicated he had found the pavers for the corrective work, the Registrar reopened the Complaint and issued the identical Directive, now dated September 9, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work listed above by September 26, 2022.
6. The Registrar performed a compliance inspection on September 29, 2022. After observing that Respondent had not completed the corrective work, the Registrar then issued a Citation to Respondent, dated October 3, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
8. The Registrar issued a Notice of Hearing, dated November 8, 2022, that set a hearing for December 29, 2022, at 9:00 A.M. At the hearing at which both Complainant and Respondent were present, the matter was continued and later set for January 20, 2023, at 9:00 A.M. so that missing exhibits could be submitted. A copy of the Minute Entry - Granting Continuance was emailed to Respondent on or about December 13, 2022, at his address of record.
. 9. Although the commencement of the January 20, 2023, hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing on his own behalf or through an authorized employee, attorney, or any other person. Consequently, Respondent did not present any evidence to oppose or object to disciplinary action being imposed against his license.
10. At the January 23, 2023, hearing, Complainant Kyle Donahue testified on his own behalf and presented the testimony of Brittany Donahue. No testimony was presented on behalf of Respondent. Michael Wiskow, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A1 - A5, B1 - B35, C1- C4, D1 - D3, E1, E2, E5, and F1 - F5. No exhibits were submitted on behalf of Respondent.
11. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that at the compliance inspection he observed that Compliance Item Numbers 2, 4, 6, 12, and 18 were completed but that Compliance Item Numbers 1, 9, 11, 13, and 14 were not completed. With regard to Compliance Item No. 2, the Investigator testified that the Respondent stated and it appeared that additional sand had been applied between the pavers.
12. Complainant Kyle Donahue testified, as herein relevant to the Citation, that the project has continued to degrade, that the entire borders have worsened, that there is nothing to hold the pavers in and nothing to let the moisture out. He further testified that Respondent did correct some but not all of the Directive items during the Directive period. He further stated there were more pavers with lippage than reflected in the Directive and that many of the items had worsened since the last compliance inspection.
13. Brittany Donahue testified, as herein relevant to the Citation, on behalf of Complainant that Respondent tried to change the pavers Complainant selected and that Complainant tried to get out of the contract but that Respondent refused. She further testified as to additional issues with Respondent.
14. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued a license on June 28, 2005. The site also reflects no previous discipline cases and one case against Respondent that was resolved/settled and closed as of May 5, 2021.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The copy of the Minute Entry - Granting Continuance mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a) with regard to Compliance Item Numbers 1, 9, 11, 13, and 14 and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(3). The testimony of the Investigator and the photographs persuades the Tribunal that the work was not performed in a professional and workmanlike manner. While the Tribunal acknowledges from testimony that items in the Directive have worsened and new items have arisen, those items are not part of this proceeding but may be the subject of a future proceeding.
8. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform all corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent did not complete the corrective work and there was no evidence of a valid justification for failing to do so.
9. The Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Compliance Item Numbers 1, 9, 11, 13, and 14, and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Candelario Mendoza, DBA Diamond Masonry & Landscape, License Number 209083 is suspended for five days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
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, February 9, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Kyle Donahue
15892 Banff Lane
Surprise, AZ 85378
[email redacted]
Candelerio Mendoza
DBA Diamond Masonry and Landscape
15845 N. Jerry St.
Surprise, AZ 85379
[email redacted]
By: OAH Staff