ALJDEC - Licensing

2023A-07878-CHC-ROC · Registrar of Contractors · 2023-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Zachary Cates,

COMPLAINANT

v.

Stoneway Custom Concrete LLC

License No. ROC 322620,

RESPONDENT

No. 2023A-07878-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2023

APPEARANCES: Zachary Cates appeared on his own behalf. Jeff Frink, Owner and Qualifying Party, appeared on behalf of Respondent Stoneway Custom Concrete LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Stoneway Custom Concrete LLC (Respondent) is the holder of License No. 322620 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 29, 2023, Zachary Cates (Complainant) entered into a contract with Respondent for the installation of footings and concrete slab for a pre-engineered metal building.

On or about July 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 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 August 25, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Cracks in concrete.

Investigator’s Observation: I observed multiple area of cracking that were exacerbated by not have any control joints installed. Some random cracking should always be expected, even with sufficiently close joint spacing.

It is reasonable to expect random visible cracks to occur. With no control joints this does not meet standards. Respondent should correct 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 - Footprints in concrete.

Investigator’s Observation: I observed footprints in the finish of the concrete. Does not meet standards. Respondent should correct 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.

Following the issuance of the written directive, Respondent did not attempt to perform any corrective work. After the deadline in the directive expired, Investigator Crosby 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); and A.R.S. § 32-1154(A)(22).

Investigator Crosby testified that Respondent’s license was suspended for lack of bond on the date of the contract and at the time of the performance of the contract. Investigator Crosby stated that the cracks in the concrete were the result of no control joints being installed.

Complainant testified that he did not know Respondent’s license was suspended at the time of the contract or performance. Complainant stated that the lack of anchor bolts ended up costing him $7,000.00 more.

Mr. Frink testified that Respondent had since closed and was out of business. Mr. Frink denied knowing that Respondent’s license was suspended at the time of the contract and performance until he heard Investigator Crosby’s testimony. Mr. Frink asserted that saw cut joints were not a part of the contract. Mr. Frink also noted that Respondent completed the excavation for free even though it was excluded by the contract.

Administrative notice is taken of Respondent’s prior License record on November 20, 2023. Such prior License record reflects that Respondent’s License No. 322620 was first issued on November 15, 2018, and has been suspended for non-renewal since November 15, 2022. 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 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. 322620 for a period of seven 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, November 20, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Zachary Cates

[email redacted]

Miles Crosby

[email redacted]

Stoneway Custom Concrete LLC

[email redacted]

By: OAH Staff