ALJDEC - Licensing

2023A-06107-CHC-ROC · Registrar of Contractors · 2024-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martha Luna,

COMPLAINANT,

v.

Dewey Trail

DBA: Dewey Trail

License No. ROC 322167,

RESPONDENT.

No. 2023A-06107-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 21, 2024

APPEARANCES: Complainant Martha Luna appeared on her own behalf with her husband, Enrique Luna, and daughter, Leticia Villareal. Lawrence Felder, Esq. represented Respondent Dewey Trail, doing business as Dewy Trail. Arizona Registrar of Contractors Investigator Jim Dimond appeared as a witness. Also present was Investigator Daniel Otero.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None

FINDINGS OF FACT

Procedural History

The hearing of this matter was scheduled to convene on January 8, 2024, at 9:00 a.m. On the date and time set for hearing, Martha Luna (“Complainant”) appeared on her own behalf. Also present were Complainant’s husband, Enrique Luna, and daughter, Leticia Villareal. Lawrence Felder, Esq. represented Dewey Trail, doing business as Dewy Trail (“Respondent”). Cody Trail was present on behalf of Respondent. Arizona Registrar of Contractors (“Registrar”) Investigator Jim Dimond appeared as a witness. Also present was Investigator Daniel Otero.

The parties participated in a prehearing discussion outside of the presence of the Administrative Law Judge. As a result of the discussion, the parties entered into a settlement agreement, however, needed additional time in which to execute the terms of that agreement.

The hearing was continued and set for a Status Update on January 22, 2024.

On January 22, 2024, Respondent’s counsel filed a Motion to Continue and Reset for Status, stating the following:

Respondent has been available to undertake the corrective work but weather conditions this month have not been conducive to the specific necessary repairs. Respondent will work with Complainant to undertake the corrective work as soon as possible in consideration of all parties’ need for optimal weather conditions.

Also on January 22, 2024, Complainant filed an objection to continuing and resetting for another status date as follows:

We do not agree to the 30 day extension for repairs.

Weather has not been a factor in repairs not being able to be completed. The only communication we have received from Dewey Trail was 1/22/2024 at 11:46am stating they will complete the work once the weather gets to around 51 degrees. Attaching the message as well as a website printout to show the weather for the last week has been better than that.

On January 26, 2024, the undersigned issued to the parties at their respective email addresses of record, an Order Setting Continued Hearing Via Google Meet. That Order advised the parties of the continued hearing date and time of March 21, 2024, at 9:00 a.m., and contained the correct Google Meet link to appear by video or phone.

On the date and at the time set for continued hearing, Complainant appeared with Mr. Luna and Ms. Villareal. Mr. Feldman appeared on behalf of Respondent. Investigators Dimond and Otero appeared as well. A representative for Respondent did not appear. Mr. Feldman informed the Tribunal that he has emailed and called Respondent multiple times in the previous two to three weeks, however, has not received a response from Respondent.

Hearing Evidence

Respondent is the holder of License Number 322176 issued by the Registrar.

In or about May 2023, Complainant contracted with Respondent for Respondent to grade, prepare, and install chip seal over the driveway and other areas of Complainant’s property.

On or about May 29, 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 Dimond. After a July 17, 2023 Jobsite Inspection, Investigator Dimond issued a Written Directive to Respondent, dated August 16, 2023, 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 September 5, 2023.

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

Compliance Item: 2 - Chip Seal was poorly completed.

Investigator’s Observation: The product installed is very thin, there are holes in the product all over the project.

Vegetation is coming through all over the place when the installation is only 2 months old.

The respondent is to correct the condition in an appropriate manner

Compliance Item: 3 - Contract does not contain the minimum elements

Investigator’s Observation: The respondent's contract is a generic, carbon copy filled out document.

The document does not contain the company name, business address and license number of the company in violation of ARS 32-1158.B.(1)

While there is a description of the work, there is no dollar amount for the applicable taxes as required in ARS 32-1154.A.(6). Tax amount does not appear anywhere on the contract.

The contract does not include the notice to the public of the right to file an ROC complaint as required by ARS 32-1158.B.(9)

The respondent is to correct his contracts used to conduct business in appropriate manner and provide a compliant copy to the investigator within the time frame set forth on this directive.

Compliance Item: 4 - Paperwork used to conduct the business of contracting does not have the respondent's license number as required

Investigator’s Observation: The respondent's contract does not contain the license number preceded by the ROC acronym.

It has no license number at all.

The respondent is to display the license number, preceded by the ROC acronym in an appropriate manner and provide the investigator a compliant copy within the time frame set forth on this directive.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Chip Seal was completed instead of the Asphalt that was requested

Investigator’s Observation: The complainant's provided a text message indicating they wanted a price for asphalt.

The respondent indicated he would call them.

I do not know the contents of their discussion.

Chip seal is in place and the invoice is for the installation of chip.

The complainant states that they did not receive paperwork until after the first day.

Additional product was brought in the next day and the work continue and the other half of the funds paid.

The information presented that asphalt was contracted is not sufficient to sustain a violation at an administrative hearing.

All errors in original.

Following the expiration of the Written Directive, Investigator Dimond ascertained that Respondent had performed corrective work. Consequently, Investigator Dimond scheduled a Compliance Jobsite Inspection on October 19, 2023. Investigator Dimond’s Compliance Jobsite General Notes state the following:

Compliance Findings:

Compliance Item 2: Chip seal was poorly completed.

Investigator’s Observation: The original work appeared to have been removed.

The reinstalled chips are thicker in several locations but still thin in several areas where the oil has wicked up between the chips.

In a typical chip application, the oil is spread, a uniform layer of rock installed, rolled with a compaction roller, preferably rubber tired, and then the loose rock broomed off.

It does not appear that the installation was rolled and definitely does not appear to have been broomed

Governing Rule: The respondent is not compliant.

Compliance Item 3: Contract does not contain the minimum elements

Investigator’s Observation: The respondent contract does not contain the business name, address and license number, the applicable taxes paid and the notice to the public of the right to file an ROC complaint.

Respondent was directed to provide the investigator a compliant copy of corrected contracts and he has not.

Governing Rule: The respondent is not in compliance

All errors in original.

Investigator Dimond thereafter forwarded the Complaint to the Registrar’s Legal Department. 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), A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158 and A.R.S. § 32-1124(B), and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and Compliance Jobsite General Notes. Investigator Dimond referenced the photographs taken at both the Jobsite Inspection and Compliance Jobsite Inspection which depict the deficiencies in Respondent’s work. Investigator Dimond also testified as to the missing elements on Respondent’s contract document as set forth in the Written Directive.

Investigator Dimond further testified that notwithstanding the corrective work performed by Respondent, that work continued to not meet minimum workmanship standards as there was tar and oil seeping through the material because it was not properly installed. Investigator Dimond estimated that at least thirty percent of the entire project “was too thin.” Investigator Dimond testified that the chip seal should be able to withstand vehicle traffic because that is its intended purpose.

Investigator Dimond also testified regarding communication between the parties after the initial hearing setting. Investigator Dimond testified that Respondent arrived at Complainant’s property unannounced at 7:14 a.m. on February 28, 2024. This was beyond the time period within which the parties agreed to resolve the matter. Notwithstanding such, Complainant indicated that she would allow Respondent to perform additional corrective work from March 3, 2024, through March 13, 2024, as long as Respondent provided notice to Complainant as to when Respondent would be performing the work. Respondent did not perform any further corrective work.

Complainant concurred with Investigator Dimond’s testimony and requested that discipline be imposed against Respondent’s license.

Administrative notice is taken of Respondent’s prior License record on March 22, 2024. Such prior License record reflects that Respondent’s License Number 322167 was first issued on September 27, 2018, and is active. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract/estimate does not contain the business name, address and license number preceded by the “ROC” acronym, the applicable taxes paid, and the notice to the public of the right to file a complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statutes in violation of A.R.S. § 32-1154(A)(12).

The evidence established that while Respondent performed some corrective work during the period of the Written Directive, that work did not meet minimum workmanship standards. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar, without valid justification, 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 Number 322176 for a period of five (5) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 (30) 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.

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 all elements required by A.R.S. § 32-1158(A) and A.R.S. § 32-1124(B). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) and A.R.S. § 32-1124(B) within thirty (30) 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 27, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jim Dimond

[email redacted]

Dewey Trail

DBA: Dewey Trail

[email redacted]

[email redacted]

Martha Luna

[email redacted]

Lawrence Felder, Esq.

[email redacted]

By: OAH Staff