ALJDEC - Licensing

2023A-05150-CHC-ROC · Registrar of Contractors · 2024-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sam Gordon,

COMPLAINANT

v.

A to Z Drilling & Pump Service LLC

License No. ROC 182801,

RESPONDENT

No. 2023A-05150-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2024

APPEARANCES: Sam Gordon appeared on his own behalf. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

A to Z Drilling & Pump Service LLC (Respondent) is the holder of License No. 182801 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 8, 2021, Sam Gordon (Complainant) entered into a contract with Respondent for the drilling of a well on Complainant’s property. The contract was missing elements #4 and #9 of Ariz. Rev. Stat. § 32-1158.

On or about May 1, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Miles Crosby. After a jobsite inspection, Investigator Crosby 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 June 17, 2023.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Well has not completed (see narrative).

Investigator’s Observation: I observed the well to be in progress. The Respondent has verified that he knows the well has not been completed but has not returned to finish the job. Respondent should correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

After the deadline in the directive expired, Investigator Crosby was notified that no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1124(B); and Ariz. Rev. Stat. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on August 29, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A Google Meet order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on February 27, 2024.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Crosby testified consistently with his written directive and jobsite inspection notes. He further testified that, upon his jobsite inspection, he discovered the well to have been just a partially drilled hole with a broken down rig present on the property.

Investigator Crosby further testified that Respondent had contacted him several times during the process to advise him that Respondent intended to resolve the matter, advising that he had other drilling rigs that he was either purchasing or borrowing in order to complete the job, but Respondent never followed through. Investigator Crosby testified that he advised Respondent that if Respondent could provide proof to show that Respondent would be able to obtain a rig within a reasonable amount of time, Investigator Crosby would extend the compliance deadline. However, Respondent made no efforts. Therefore, Investigator Crosby referred the matter to the Registrar’s legal department for the issuance of a citation.

Investigator Crosby further testified that the contract between Complainant and Respondent was missing elements #4 and #9 of Ariz. Rev. Stat. § 32-1158.

Additionally, Investigator Crosby testified that he requested the Registrar’s legal department cite Respondent for a potential violation of Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1124(B) for failure to post Respondent’s ROC License number in a conspicuous place on the premises where the work was being performed. Investigator Crosby testified that, typically in a rural place such as Complainant’s jobsite, this information should have been readily available upon the front facing part of the property. Complainant, in this case, had a gate access; therefore Investigator Crosby would have typically seen a fiberglass 24x36 size box with all of the required information be mounted to a pole on that gate access. All of the required information was missing.

Complainant testified that two and a half years ago, Respondent worked on creating his well for approximately one month and then became sick. At the same time, the rig that Respondent was using broke. Complainant attempted to help Respondent by repairing the rig, at his own cost. Respondent resumed drilling again, but then continued to have problems with the rig. Complainant testified that Respondent would show up on to work, and then disappear for several months at a time and this became a pattern. Ultimately, Respondent never reappeared. Complainant testified he was frustrated and wanted Respondent’s license revoked.

Administrative notice is taken of Respondent’s prior License record on February 27, 2024. Such prior License record reflects that Respondent’s License No. 182801 was first issued on March 5, 2003, and is currently active. Such prior License record also reflects that there were no other open complaints and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not attempt to 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 Ariz. Rev. Stat. § 32-1154(A)(22).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

The evidence established that Respondent failed to post its ROC License number in a conspicuous place on the premises where the work was being performed as required by Ariz. Rev. Stat. § 32-11524(B). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

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. 182801 for a period of 4 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. § 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. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 4, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff