ALJDEC - Licensing

2023A-06797-CHC-ROC · Registrar of Contractors · 2023-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan Demilto,

COMPLAINANT

v.

Candelario Mendoza

DBA: Diamond Masonry & Landscape

License No. ROC 209083,

RESPONDENT

No. 2023A-06797-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 2, 2023

APPEARANCES: Complainant Ryan Demilto appeared and was represented by Robert Rutila. Respondent Canderlario Mendoza appeared on his behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Candelario Mendoza, doing business as Diamond Masonry & Landscaping (Respondent) is the holder of License No. 209083 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 27, 2023, Ryan Demilto (Complainant) entered into a contract with Respondent for, among other things, an exposed aggregate driveway.

On or about June 17, 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 Joey Chester. After a jobsite inspection, Investigator Chester 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 July 24, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Exposed aggregate is not uniform.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: Rebar is exposed at the top of the driveway and in the expansion joints

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 3: cracked and chipped expansion joints

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 4: uneven/unlevel concrete near front door

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

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 did not reach a financial settlement with Complainant. After the deadline in the directive expired, Investigator Chester was notified no corrective work had been performed.

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)(16); and A.R.S. § 32-1154(A)(22).

Investigator Chester testified that Respondent’s masonry license type, CR31, did not permit Respondent to install driveways.

Complainant testified that Respondent poured the driveway and repoured it after the first driveway was flawed.

Mr. Mendoza acknowledged that Respondent’s license did not allow it to perform the work in this matter. Mr. Mendoza stated he offered to return the money Complainant paid on the contract, but Complainant refused to accept that as a settlement.

Veronica Silvas, Respondent’s Office Manager, testified that Respondent offered to clean up the garage door and remove the driveway, but stated that Respondent had no intention to replace the driveway again.

Administrative notice is taken of Respondent’s prior License record on October 22, 2023. Such prior License record reflects that Respondent’s License No. 209083 was first issued on June 28, 2005, and is active. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in discipline 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 entered into a contract for work that it was not permitted to perform under its license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

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 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. 209083 for a period of three 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 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)(5), 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, October 23, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Joey Chester

[email redacted]

Robert P. Rutila Esq.

RUTILA, SEIBT & NASH, PLLC

[email redacted]

[email redacted]

Candelario Mendoza

Mendoza Landscape And Irrigation

DBA: Diamond Masonry & Landscape

[email redacted]

By: OAH Staff