ALJDEC - Licensing
2022A-09502-CHC-ROC · Registrar of Contractors · 2023-03-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lori Ashford,
COMPLAINANT
v.
Tucson Construction Company LLC
License No. ROC 333660,
RESPONDENT
No. 2022A-09502-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 10, 2023
APPEARANCES: Complainant Lori Ashford appeared via Google Meet on her own behalf. Jose Reyes appeared via Google Meet on behalf of Respondent. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Tucson Construction Company LLC (Respondent) is the holder of License No. 333660 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 8, 2022, Lori Ashford (Complainant) agreed to have Respondent install a solar powered gate and chain link fencing around her home. The total cost was $11,405.89.
On or about October 20, 2022, the Registrar received a Complaint containing one item against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on November 9, 2022. At that jobsite inspection, Complainant wanted to amend her complaint. A Written Directive was issued on November 15, 2022.
A second jobsite inspection was conducted on December 1, 2022, and Investigator Johndrow then issued an Amended Written Directive on or about 7, 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 December 23, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Tucson Construction company was hired to install a chain link fence and a solar powered gate at my property. Mr Reyes told us the work was finished on 10/08/22. Mr Reyes used the remote control on the gate and opened and closed the gate about 5 feet. We went to us the gate remote on 10/10/22 and the gate would not open, the gate did not move.”
Investigator’s Observations: Verified. The gate opener is non-operational.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Addendum Complaint Item 1: “I would like to add the housing of the motor and the solar batteries to make sure that they are up to code, standard and safe.”
(Complainant’s description of the poor installation of the motor housing and the battery storage.)
Investigator’s Observations: Verified. The mounting base housing constructed for the gate motor has failed and the motor is now loose and detached from the base compromising the ability to operate the gate to open and closed. The battery storage is a plastic toolbox. The storage is not secure or safe for proper storage. Additionally, the wiring for the motor and the batteries has been routed inside a non-weather tight plastic cover. None of the conditions observed meet industry standards. The respondent shall make the necessary corrections and ensure all of the issues meet industry standards.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Addendum Complaint Item 2: “I would like to have the 10 foot back gates added. One gate sits approximately 7 to 8 inches off the ground on the end. When opening these gates they drag on the ground.”
Investigator’s Observations: Verified. When viewed from inside the yard, the left side gate has the 7 to 8 inch gap next to the hinge post and when in operation the gate on the right side drags on the ground.
The respondent shall perform the necessary corrections to ensure there is no space under the gate and the operation of both gates do not drag on the ground.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Addendum Complaint Item 3: “Add the gate latch on the walk-through gate and the 10 foot gates. The latches do not hold the gates closed.”
Investigator’s Observations: Verified. The complainant demonstrated that the latches installed on both the double and single gates do not allow the gates to stay securely closed. The respondent shall ensure the necessary corrections are made to secure both gate locations.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
(All errors contained in the original).
On December 30, 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); and A.R.S. § 32-1154(A)(22).
Respondent timely filed an Answer to the Registrar.
On or about February 3, 2022, a Notice of Hearing was issued setting a hearing on March 10, 2023, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.
Investigator Johndrow testified that Respondent failed to appear both of the Jobsite Inspections.
In addition, Investigator Johndow testified that the solar gate was not operational, and the housing of the motor was loose and becoming detached from the base.
As to the chain link fence, Investigator Johndrow testified that the gate latch was not operational, and the end of the gates were uneven such that when opening the gate, it would drag on the ground.
Further, Investigator Johndrow testified that in between the two inspections, Respondent performed some work on the motor, but in his opinion the motorized gate still was not functioning properly.
Finally, Investigator Johndrow testified that there was no compliance jobsite inspection, as no further work was performed by Respondent once the Amended Written Directive was issued.
Lori Ashford testified on her own behalf. She testified that Mr. Reyes was really good when the job first started, but that it took him days to make repairs to the solar motor.
Ms. Ashford testified that she disconnected the motor to make the gate functional until the repairs were properly made, and to date, she still has to manually operate the gate.
Ms. Ashford testified further that Mr. Reyes was aware of the slope by the chain link fence, and did not realized there would be a 7 inch gap.
Finally, Ms. Ashford testified that no other corrective work was performed since the Amended Written Directive.
Jose Reyes testified on behalf of Respondent. He testified that everything on the jobsite went smoothly, and he tested the gate prior to leaving the jobsite. Mr. Reyes testified that he ordered an upgraded motor and installed the same on November 15, 2022, and performed tests for 45 minutes to ensure that it was working properly.
As to the chain link fence, Mr. Reyes testified that he did not make repairs to the latch, or the gap in the fencing.
Administrative notice is taken of Respondent’s prior License record on March 27, 2023. Such prior License record reflected that Respondent’s License No. 333660 was first issued on June 11, 2021, and also reflected that there were two open complaints, one of which was 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 Vazzano 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 was not in conformity with the Registrar’s standards. The solar gate opener was not operational, the motor housing was becoming detached from the base, the chain link gate was dragging on the ground and finally, the latch did not hold the gates closed. 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(A).
The evidence established Respondent failed to complete the corrective work following the Directive being issued. Mr. Reyes did not dispute that the addendum items were not corrected. As to the solar gate functioning, no persuasive evidence was presented to demonstrate that the gate was now functioning, as Ms. Ashford testified that the gate was still not operational. Further, Investigator Johndrow likewise testified that while work was done in between the two inspections on the gate operation, the gate still did not meet workmanship standards. 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. 333660 for a period of four days.
It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.
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, March 27, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Lori Ashford
2865 W Calle Carapan
Tucson, AZ 85745
[email redacted]
Tucson Construction Company LLC
6442 S Bright Sun Ave
Tucson, AZ 85706
[email redacted]
By: OAH Staff