ALJDEC - Licensing
2023A-00433-CHC-ROC · Registrar of Contractors · 2023-08-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Clint Patrick Schuler,
COMPLAINANT
v.
Garza Concrete Inc.
License No. ROC 191463,
RESPONDENT
No. 2023A-00433-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 21, 2023
APPEARANCES: Clint Schuler, Member and Qualifying Party of Gentry Estates LLC, appeared on his own behalf. Joe Garza, Owner and Qualifying Party, appeared on behalf of Respondent Garza Concrete Inc.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Garza Concrete Inc. (Respondent) is the holder of License No. 191463 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 11, 2022, Clint Schuler, on behalf of Gentry Estates LLC, (Complainant) entered into a contract with Respondent for, among other things, a concrete pad.
On or about January 12, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg issued a written directive 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 Tuesday March 7, 2023.
. . . .
Investigator Note: In reviewing the contract submitted by the complainant I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: Concrete poured cracking and pulling away from the residence.
Investigator’s Observation: Verified. The respondent is to correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Following the issuance of the written directive, Respondent removed the concrete patio at the front of the home, but did not replace it. After the deadline in the directive expired, Investigator Fagerburg was notified the corrective work had not been completed.
During a compliance jobsite inspection, Investigator Fagerburg noted that the concrete patio had been removed.
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).
Investigator Fagerburg testified that even if the homeowner agreed to compact the backfill, Respondent accepted the surface and was responsible for ensuring the area was properly prepared for the installation of the concrete.
Complainant testified that he believed the homeowner should be held responsible for failing to properly compact the backfill prior to Respondent’s installation of the concrete. Complainant also noted that at the compliance jobsite inspection, the homeowner indicated he would properly compact the backfill in the area to allow Respondent to perform the concrete work.
Mr. Garza testified that he was willing to perform the corrective work, but the homeowner had failed to fulfill his promise to compact the backfill so Respondent could perform the work.
Administrative notice is taken of Respondent’s prior License record on August 10, 2023. Such prior License record reflects that Respondent’s License No. 191463 was first issued on December 24, 2003, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 that Respondent did not complete the corrective work following the Directive being issued. 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. 191463 for a period of one day.
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, August 10, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
David Fagerburg
[email redacted]
Garza Concrete Inc.
[email redacted]
Clint Patrick Schuler Gentry Estates LLC
[email redacted]
By: OAH Staff