ALJDEC decisions subject to certification as final

2022A-07620-CHC-ROC · Registrar of Contractors · 2023-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DAVID HARDIN

COMPLAINANT,

James White Docherty Wilson

DBA: Wilson Asphalting & Sealing

License No. ROC 332317,

RESPONDENT.

No. 2022A-07620-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 23, 2023

APPEARANCES: Complainant David Hardin (Mr. Hardin) appeared on behalf of himself. Respondent James White Docherty Wilson DBA: Wilson Asphalting & Sealing (Docherty) did not appear.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about July 21, 2021, Mr. Hardin and Docherty entered into a commercial construction contract wherein Docherty would re-pave Mr. Hardin’s existing parking lot for the amount of $35,000.

2. The contract did not include the following information:

An estimated date of completion

Information about the customer’s right to file a complaint with the registrar in at least 10 point bold type

Contact information for the registrar in at least 10 point bold type

3. Mr. Hardin paid Docherty $35,000.

4. On or about November 30, 2021, Docherty started work.

5. On or about September 1, 2022, the Arizona Registrar of Contractors (Registrar) received a complaint from Mr. Hardin alleging poor workmanship on the part of Docherty.

6. On or about November 14, 2022, Registrar Investigator John Smith conducted a job-site inspection.

7. On October 7, 2022, the Registrar issued a Directive to Docherty that provided, in relevant part, 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 November 4, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons , or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “New paving is sinking in several areas due to poor compaction. New paving does not drain properly during rain events.”

Investigator’s Observations: Verified. There is significant sinking and ponding of the new asphalt pavement. The scope of work per contract includes:

• Remove existing lot

• Regrade add base as needed to correct drainage

• Move parking stops

• Apply hot mix asphalt to extra lot

• Reset all parking stops

• Apply parking lines and markings

• Will correct drainage if needed prior to seal coat

• Will correct drainage prior to seal coating is holding water persists for no additional charge

The respondent was not present for the jobsite inspection. The respondent did submit an emailed response to the complaint, timestamped 8:54AM on October 7, 2022. (^ minutes prior to the scheduled jobsite inspection) In that response the respondent claims the settling and sinking are a result of uncompacted underlying soil. (Paraphrased) There is no contract language, or change orders, that alleviate the respondent’s responsibility for the condition of the asphalt, or the condition of the underlying soil.

Quoted from Substantive Policy Statement 2017.01 Acceptance of the Surface

• "As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner's or general contractor's attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer."

Source: Deebv. Check s Epoxy , No. 2014A-3258 (ALJ Decision at 11:11- 19).

Also in the respondent’s emailed response, the respondent claims there was a water leak since the completion of the project. (Paraphrased) The complainant volunteered this information during the jobsite inspection.

As explained by the complainant:

• After the initial completion of the asphalt, there was a leak in an irrigation line near the southern most corner of the parking lot. The respondent had a relatively small section of asphalt cut and removed, and had the irrigation line repaired. The complainant is not considering this section of asphalt to the respondent’s responsibility. There is no evidence the described leak from the irrigation line had any negative affect on the rest of the parking lot.

Governing Rule: N/A

8. The Registrar further notified Docherty through the October 7, 2022 Directive that it had violated A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A), because Docherty’s contract was missing the following information:

An estimated date of completion

Information about the customer’s right to file a complaint with the registrar in at least10 point bold type

Contact information for the registrar in at least 10 point bold type

9. On November 14, 2022, Investigator Smith conducted a compliance job-site inspection. Investigator Smith concluded that Docherty’s work did not satisfy the Registrar’s minimum workmanship standards.

11. On or about November 18, 2022, the Registrar issued a Citation against Docherty’s license. Through the Citation, the Registrar alleged that Docherty violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3),(12), and (22); Arizona Administrative Code (A.A.C) R9-4-108(A); A.R.S. § 32-1158.

12. Docherty filed a timely response to the Citation.

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

14. A hearing was held on January 23, 2023.

15. At hearing, Mr. Hardin testified on behalf of himself. Investigator Smith testified regarding his investigation of the complaint and the issuance of the Directive.

16. Mr. Hardin explained that Docherty performed poor when it re-paved his parking lot.

17. No one appeared on behalf of Docherty at the hearing on January 23,

2023. Docherty did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. Consequently, the matter was convened in Docherty’s absence. Docherty did not present any evidence to defend its license.

18. Administrative notice is taken of Respondent’s prior License record on February 13, 2023. Such prior License record reflects that Respondent’s License No. 332317 was first issued on February 19, 2021, and is active. Such prior License record also reflects that there is only one complaint against Docherty’s license. Docherty’s license has never been subjected to discipline.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat.

section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such 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).

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).

4. The undisputed evidence established that Respondent’s contract did not include the minimum elements required for a contract as set forth in A.R.S. § 32-1158. Therefore, the Administrative Law Judge Concludes that Respondent violated A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1158.

5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’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 in this matter, License No. 332317 of James White Docherty Wilson DBA: Wilson Asphalting & Sealing is suspended for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.

It is further recommended that the Registrar require Respondent to submit a contract that includes the minimum elements required for a contract as set forth in A.R.S. 32-1158.

It is further recommended that 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 and submits to the Registrar a contract that includes the minimum elements required for a contract as set forth in A.R.S. 32-1158.

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.

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001

-137160-45720000Done this day, February 13, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

DAVID HARDIN

P.O. BOX 1012

574 N. OAKCLIFFE CT.

ORACLE, AZ 85623-1012

[email redacted]

James White Docherty Wilson

DBA: Wilson Asphalting & Sealing

5545 S 135 W No 78

Alvarado, TX 76009

[email redacted]

Martín Quezada, Director

Registrar of Contractors

[email redacted]

By: OAH Staff

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-137160-45720000