ALJDEC - Licensing
2023A-06021-CHC-ROC · Registrar of Contractors · 2023-12-04
N THE OFFICE OF ADMINISTRATIVE HEARINGS
Gary Solomon
COMPLAINANT,
v.
Security Door, Gate, and Fence LLC
License No. ROC 314281,
RESPONDENT.
No. 2023A-06021-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 14, 2023
APPEARANCES: Complainant Gary Solomon represented himself. Frank Vargas represented Respondent Security Door, Gate, and Fence LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Security Door, Gate, and Fence LLC (Respondent) holds License No. 314281, issued by the Registrar of Contractors (Registrar).
2. Frank Vargas is Respondent’s qualifying party.
3. In August of 2021, Respondent agreed to install a gate operator at Complainant’s home for $5,970.00. Complainant paid Respondent $5,970.00 for the installation.
4. Respondent installed the gate operator and completed construction on December 12, 2021.
5. On or about May 25, 2023, the Registrar received a complaint from
Complainant alleging poor work on the part of Respondent.
6. On or about June 27, 2023, Registrar Investigator Dan Edwards conducted a job-site inspection.
7. On or about June 29, 2023, the Registrar issued a Directive to Respondent. The Directive 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 July 17, 2023.
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:
Compliance Item: 1 - Improper installation of operational drive shaft
Investigator’s Observation: Substantiated. Manufacturer has inspected the installation and verified that the linking and drive arms at the north box are not installed correctly, causing them to bottom out on shaft/pivot point. Respondent shall correct per manufacturer's installation requirements by appropriate means.
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.
Compliance Item: 2 - Misalignment of hinges
Investigator’s Observation: Substantiated. Manufacturer's installation requirements specify that the gate hinges must be aligned with foundation box pivot point, this was not done. Respondent shall correct per manufacturer's installation requirements by appropriate means.
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.
Compliance Item: 3 - Manufacturers required rainwater drain installation not installed
Investigator’s Observation: Substantiated, no rainwater drainage has been installed. Respondent shall correct per manufacturer's installation requirements by appropriate means.
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.
ITEMS NOT REQUIRING CORRECTION The following complaint items require no action by the Respondent:
Compliance Item: 4 - Improper limit functions
Investigator’s Observation: Allegation is a duplicate of issues addressed in compliance item no. 1.
Governing Rule: N/A
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8. On July 11, 2023, the Registrar extended the deadline for compliance with the Directive to July 28, 2023.
9. On July 27, 2023, the Registrar extended the deadline for compliance with the Directive to August 18, 2023, through a new Directive. In the July 27, 2023, the Registrar added an addendum complaint item filed by Complainant. The Directive provided, in relevant part, as follows:
Compliance Item: 5 - The contractor has informed me that the steel pillar attached to the stone has come loose
Investigator’s Observation: Allegation submitted as an addendum after the filing of the initial complaint. Metal pillar next to the gate installed by respondent was observed to be loose. This is ultimately work which will need to be completed to ensure the gate and related equipment are installed as required. Respondent is responsible to ensure that this is addressed by appropriate means.
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.
10. On August 28, 2023, Investigator Edwards received an e-mail from the Southwest Regional Sales Manager for the manufacturer of the gate opener. The Sales Manager opined that the gate opener was installed incorrectly because the arm and shaft were touching. The Sales Manager also opined that the limits were not the cause of the gate opener malfunctioning.
11. On August 28, 2023, Investigator Edwards conducted a compliance job-site inspection. Investigator Edwards observed that while Responded had correctly repaired complaints items 2, 3, and 5. Investigator Edwards observed that Respondent installed the gate operator as ordered, however, the gate was not operational. Investigator Edwards’s job-site inspection notes provided, in relevant part, as follows:
Compliance item no. 1 – Respondent appears to have attempted to reinstall the DoorKing 6400 gate operator as ordered, however, as of the date of compliance inspection the gate is still not operational. The linking arm is making contact with the shaft and the gate is not operating within the intended range of motion for the gate configuration. While respondent believes this issue is due to faulty limit switches failing to detect the magnetic sensor beneath the linking arm, the issue has been reviewed by the product manufacturer. Per the manufacturer, the linking arm and shaft should not be touching and this indicates that the installation is still not installed correctly per the manufacturer’s requirements. It does not appear that respondent has complied with compliance item no. 1 of the directive.
Compliance item no. 2 – Issue appears resolved
Compliance item no. 3 – Issue appears resolved
Compliance item no. 5 – Issue appears resolved
12. On or about September 1, 2023, the Registrar issued a Citation against Respondent’s license. Through the Directive, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, A.A.C. section R4-9-108(A); A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.
13. Respondent filed a timely answer to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. On September 25, 2023, the Registrar issued a Notice of Hearing setting the matter for hearing on November 14, 2023. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
16. A hearing was held on November 14, 2023.
17. At hearing, Mr. Solomon explained that Respondent performed poor work in connection with the installation of the gate opener. Mr. Solomon disputed that
Mr. Vargas correctly repaired the gate opener.
18. At hearing, Mr. Vargas stated that he appropriately repaired the gate opener. Mr. Vargas stated that his repair mirrors the image presented in the manufacturer’s manual regarding how the gate opener should appear. Mr. Vargas opined that the gate opener was not functioning properly due to the limits. However,
Mr. Vargas stated that he was never ordered in the Directive to repair limits.
19. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 4, 2023. Such prior License record reflects that Respondent’s License No. ROC 314281 was issued on June 30, 2017, and is currently active. Such prior License record shows that there are no other open complaints against Respondent’s license. Such prior License record shows that Respondent has no disciplinary history. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of 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 the license held by Respondent Security Door, Gate, and Fence LLC, for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, December 4, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Gary Solomon
[email redacted]
Security Door, Gate, and Fence LLC
[email redacted]
Daniel Edwards
[email redacted]
By: OAH Staff