ALJDEC - Licensing

2022A-09957-CHC-ROC · Registrar of Contractors · 2023-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

G 2 Contracting LLC,

COMPLAINANT,

v.

SFA Contracting LLC,

License No. ROC 324669,

RESPONDENT.

No. 2022A-09957-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 5, 2023

APPEARANCES: Attorney Blythe A. Edmonson represented G2 Contracting LLC (Complainant) who appeared through its Owner and Agent Sally Bach; Nick Carolan appeared for SFA Contracting LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent’s license, No. 324669, General Dual KB-1 Dual Building Contractor, was issued by the Arizona Registrar of Contractors (Registrar) in May of 2019. The Qualifying Party is Nicholas Carolan.

2. Complainant was hired by Chabad of Tucson to make improvements at a day school on the property. As that project progressed, it was determined that additional security was needed to keep out unknown persons and prevent vandalism at the site. Complainant then selected Respondent to complete the security features of perimeter fencing, gates, power, and other security enhancements. Respondent’s work proceeded, and was approved, on a progressive as-needed basis, with Complainant signing off on the successive bids/proposals from Respondent. Respondent’s work began in March of 2022.

3. Although the initial work had involved 227 six-foot high corrugated steel panels, at one point during the progress of the project, it was determined to replace 110 of those panels with seven-foot panels to accommodate slope elevation and minimize gaps under the panels. The work included underground electrical to the fence line for purposes of powering future rolling gate operators and main gate electronic keypad. Overall, as issues arose, the parties either remedied the issue or continued with work until October 4, 2022; thereafter, Complainant filed the ROC Complaint regarding its dissatisfaction with the work.

4. On or about November 2, 2022, the Registrar received a Complaint alleging poor workmanship and requesting an expedited inspection. The Complaint listed the areas of concern.

5. On or about December 5, 2022, Investigator Manny Bermudez conducted a job-site investigation regarding the Complaint. Investigator Bermudez divided the issues into eight items for review, and he proceeded to verify Item 8.

The jobsite inspection notes provided, in relevant part, as follows:

Compliance Item: 8 - Man gate keypad master code not provided, exit push bar not working properly, closing mechanism not per contract.

Investigator’s Observation: Verified: at time of investigation, I observed that the man gate was not closing properly. The respondent also acknowledged the closing mechanism was not the one listed in the contract and did not have the master code for the electric lock.

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 December 6, 2022, the Registrar issued a Directive and an Amended Directive, which corrected the applicable rules for Item 8 and also included an additional item for correction, Item 7 as follows:

Compliance Item: 8 - Man gate keypad master code not provided, exit push bar not working properly, closing mechanism not per contract.

Investigator’s Observation: Verified: at time of investigation, I observed that the man gate was not closing properly. The respondent also acknowledged the closing mechanism was not the one listed in the contract and did not have the master code for the electric lock.

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.

.....................

Compliance Item: 7 - Post footings do not meet minimum depth or diameter for a 6' high fence per ASTM F1184 Standard Specifications

Investigator’s Observation: Verified: The structural engineer report provided by the complainant states the following “The vertical posts at 8’ on center are 2” square x .188” thick which was field verified. They were reviewed and analyzed and are found to be overstressed based on the required wind speeds as adopted by the City of Tucson. The fence post foundations for the vertical posts were field verified to be between 12” diameter to 18” diameter x 18” deep to 24” deep. They were reviewed and analyzed and found to be insufficient in depth based on the required wind speeds. The required depth of a post footing for a fence of this configuration

under the 2018 IBC code is 4.625’ deep. At 18” to 24” deep the installed post footing is too shallow, which could result in a soil overstress under design loading.”

Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...

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.

7. The Directive indicated that Respondent should comply with the Directive by 5:00 p.m. on February 9, 2023.

8. On February 17, 2023, John Smith conducted a compliance jobsite inspection. Investigator Smith observed that no work had been corrected as to Item 7 but some work had been performed on Item 8; he wrote the following:

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been performed; however, the current conditions do not meet ROC Workmanship Standards.

The closing mechanism has been replaced; however,

• The gate does not self-close

• The gate is warped more than one inch in a seven foot span.

• The hinge side of the gate is flush with the post.

o When fully closed the latch side of the gate is out 1-1/8 to 2-1/8 inches from the post.

• The cut/notched corrugated fence panels were not replaced after removal of previous closing mechanism, leaving uneven cuts, screw holes and rough/jagged edges.

During the initial jobsite inspection, the respondent acknowledged he did not have/provide the master code for the electric lock.

During this compliance inspection, the respondent stated there is no master code.

The complainant has not been able to removed [sic] temporary codes.

9. On February 22, 2023, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a); and Ariz. Rev. Stat. section 32-1154(A)(22).

10. The Citation indicates that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

11. Respondent filed a timely answer to the Citation, with a length explanation of the allegations and circumstances.

12. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

13. At hearing, the parties revisited the challenges of the project and the progression of the work. Complainant noted that it had incurred various expenses along the way and requested to be given authorization to proceed to have remaining issues corrected. Respondent explained the switch to the seven foot panels and the issues that arose, along with the purchase of the door closer, and insisted that there is no master code; he offered suggestions for remedying the complaint noting that he wanted to work this out.

14. Administrative notice is taken of Respondent’s License record, which reflects that there is only this one open complaint against his license record.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.

section 32-1154(A).

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).

4. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.

5. The preponderance of the evidence shows that Respondent did not complete the contracted work to workmanship, directed, standards, and failed to comply with the Registrar’s Directive without valid justification. The evidence demonstrates violations as charged: of Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a); and 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 Respondent’s License No. 324699 for three days.

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

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, May 25, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

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

Martín Quezada

Registrar of Contractors

c/o Legal Department

[email redacted]

Blythe A. Edmondson

Edmondson & Landon

[email redacted]

G 2 Contracting LLC

[email redacted]

SFA Contracting LLC

[email redacted]

[email redacted]

John Smith

[email redacted]

By: OAH Staff