ALJDEC - Licensing

2023A-10109-CHC-ROC · Registrar of Contractors · 2024-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Zachary Dierickx,

COMPLAINANT

v.

Candelario Mendoza

DBA: Diamond Masonry & Landscape

License No. ROC 209083,

RESPONDENT

No. 2023A-10109-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2024, with the record held open

APPEARANCES: Complainant Zachary Dierickx appeared on his own behalf. Respondent Candelario Mendoza appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

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

On or about February 4, 2022, Zachary Dierickx (Complainant) entered into a contract with Respondent for, among other things, the construction of a block wall.

On or about August 30, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Fagerburg.

During a jobsite inspection, the parties agreed to amend the scope of work On or about October 5, 2023, after the jobsite inspection, Investigator Fagerburg 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 Thursday October 26, 2023.

. . . .

Investigator Notes:

1: In reviewing the invoice/contract documents submitted by the complainant I am able to verify there are at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract. Specifically #3, #4, #9.

2: At this jobsite investigation both parties agreed to amend the scope of work to complete the project. This includes the original scope of work that included a finished height from the interior of the property at 6’, Eco Series Precast concrete caps 12” x 24” throughout the 587 linear ft. including all columns and main entrance pillars and will disregard the grey split face block on the second course from the top that is missing throughout the entire block wall.

Investigator Notes Continued:

3: In reviewing the Maricopa County Planning & Development Department website I am able to verify Permit B202115624 was issued April 6, 2023 for a 649 linear ft. CMU Block Wall.

4: At this jobsite investigation the respondent request the complainant sign a release document regarding stepping foot onto the complainant’s property. Apparently the last time the respondent was at the property the complainant called law enforcement after negotiations regarding additional fees escalated and the respondent was informed by law enforcement not to return to the property. The complainant did allow the respondent onto the property to inspect the complaint items. At the end of the jobsite investigation the complainant signed the release document to allow access to correct and complete the project.

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: Grey split face block on second course from top missing throughout entire wall.;

Investigator’s Observation: Verified. The respondent shall complete the project per the amended invoice/contract and verbal agreement made between the 2 parties during this jobsite investigation. See Investigator Note #2.

. . . .

Compliant Item 3: they left all the demo including cement pillars fencing and didn't haul away trash or anything and left in my yard for 16 months and counting.;

Investigator’s Observation: Verified. At this jobsite investigation I observed and am able to verify the respondent left all the demolition materials including cement pillars fencing, CMU block remnants and didn't haul away the trash. See P (11) thru P (13). Per the invoice/contract submitted by the complainant I am able to verify there is a specification to demo and dispose of current fencing including haul away and dump fees which is included in the total costs. The respondent shall remove the demo materials including cement pillars, fencing, CMU block remnants and trash by appropriate means and complete the project per the original invoice/contract.

. . . .

Compliant Item 5: job was supposed to take 2-3 months its been 16 months and still isnt done.

Investigator’s Observation: Verified. I am able to verify there is no estimated completion date violating ARS §32-1158 (A) Minimum elements of a contract. The respondent shall complete the project per the verbal agreement made between the 2 parties during this jobsite investigation. See Investigator Note #2.

. . . .

Compliant Item 7: precast concrete caps never installed...

Investigator’s Observation: Verified. The respondent shall complete the project per the verbal agreement made between the 2 parties during the jobsite investigation. See Investigator Note #2.

On or about October 11, 2023, Investigator Fagerburg issued an addendum to the written directive that reflected the parties’ agreement to alter the scope of work made during the jobsite inspection.

Investigator Fagerburg also extended the deadline for compliance as the permit had not been issued, which prevented Respondent from performing the corrective work. The deadline was extended to November 10, 2023.

On or about December 8, 2023, Investigator Fagerburg conducted a compliance jobsite inspection. Investigator Fagerburg noted that the ongoing issue appeared to be a question with Maricopa County as to whether the wall was intended to be a block wall or a retaining wall.

On or about February 26, 2024, Investigator Fagerburg conducted a prehearing jobsite inspection at which he observed the project had not been completed.

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 Fagerburg testified that, to his knowledge, the project had never been inspected by the Maricopa County building authority, which was the outstanding issue in this matter. Investigator Fagerburg stated that a permit was set to expire on March 31, 2024.

Complainant testified that he worked with Respondent extensively in an attempt to complete the project. Complainant altered the scope of the work to be completed and made changes to the materials to enable the project to proceed.

Veronica Silvas, Respondent’s wife, testified that she was the one who took out the permit and she was not informed initially that it was a retaining wall, which led to the existing problems.

Administrative notice is taken of Respondent’s prior License record on May 8, 2024. 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 two prior complaints 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 did not 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 five 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, May 8, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

David Fagerburg

[email redacted]

Zachary Dierickx

[email redacted]

Candelario Mendoza

Mendoza Landscape And Irrigation

DBA: Diamond Masonry & Landscape

[email redacted]

By: OAH Staff