ALJDEC - Licensing
2023A-12765-CHC-ROC · Registrar of Contractors · 2024-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
AZ Home Services LLC,
COMPLAINANT
v.
San-Co Concrete Inc.
License No. ROC 284715,
RESPONDENT
No. 2023A-12765-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 3, 2024 and July 29, 2024
APPEARANCES: Complainant AZ Home Services LLC was represented by Brian Weinberger. Respondent San-Co Concrete Inc. was represented by Julianne Wheeler. Registrar of Contractors Investigator David Fagerburg appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s 1-9 and Respondent’s 1-13.
_____________________________________________________________________
FINDINGS OF FACT
San-Co Concrete Inc., (Respondent) is the holder of License No. 284715 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 10, 2021, Jody Clute hired AZ Home Services LLC to remodel a business. Complainant hired Respondent to handle the concrete work inside the building.
On or about November 6, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
Ms. Clute too had filed a Complaint against Respondent, however that matter had been dismissed as the Registrar found that Complainant denied access to Respondent to perform the corrective work.
The Registrar assigned the present complaint to Investigator David Fagerburg. The jobsite inspection was performed on December 1, 2023.
Investigator Fagerburg then issued a Written Directive on or about December 11, 2023, which provided in pertinent 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 Monday January 8, 2024.
...
Investigator Notes:
1: The jobsite owner previously submitted complaint 2023-01373 which was dismissed due to denial of access after a written directive had been issued.
2: This complaint was submitted by the general contractor on behalf of the jobsite owner.
3: During this jobsite investigation the jobsite owner acknowledged that the business opened May 1, 2023 and the written directive was issued April 11, 2023 with an expiration date of May 12, 2023.
4: These jobsite inspection notes will address what was submitted by the complainant along with the original complaint items and addendum complaint items previously submitted by the jobsite owner related to 2023-01373.
5: Complaint Item 3 has been separated into 2 individual complaint items and will be addressed as complaint item 3a and 3b for clarity.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: Excessive cracking & movement on both first floor & second floor slabs.
Investigator’s Observation: Verified. Cracks wider than 1/8" should be properly repaired with appropriate material. Cracks over 1/4" indicate the possibility of settlement, heaving or other failure. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 2: Uneven services throughout building.
Investigator’s Observation: Verified. I observed and am able to verify there are uneven surfaces throughout the building. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 3b: Saw cut joints not deep enough, and crooked lines
Investigator’s Observation: Verified. I observed and am able to verify there are multiple saw cut joints that have jagged edges and are crooked on both first and second floor concrete slabs. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 4: Multiple areas that had to be grinded down due to extreme high spots on finish floor.
Investigator’s Observation: Verified. Per ROC workmanship standards there is no acceptable tolerance for improper, inadequate or unsightly concrete finishing. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 5: Isolated footers in wrong location and had to modify per structural engineer guidance.
Investigator’s Observation: Verified. Patching should be flush with the existing surface and match as close as possible. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 6: Second story stair landings had elevation to high and had to be replaced.
Investigator’s Observation: Verified. The complainant showed me where the second floor landing on the north exit door had to be replaced and is now crumbling and deteriorating. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 8: Concrete splatter on interior block walls that had a natural finish.
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 9: Exposed aggregate after grinding down high spots. Preventing customer to do polished concrete floors through out building.
Investigator’s Observation: Verified. Per ROC workmanship standards there is no acceptable tolerance for improper, inadequate or unsightly concrete finishing. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
2023-01373 Compliant Item 5: Spalling; damage during repair attempts (floor pans and stair landings
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
2023-01373 Compliant Item 8: Edging not finished/poured and not finished
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
2023-01373 Compliant Item 10: Vapor barrier popping through floor
Investigator’s Observation: Verified. In reviewing the written directive issued April 11, 2023 I am able to verify the investigator assigned was able to observe and verify the vapor barrier is popping through the concrete slab on the first floor. The respondent shall correct by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards...
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliant Item 3a: Saw cut joints not deep enough, and crooked lines
Investigator’s Observation: Not Verified. In reviewing the written contract submitted the first and second floor concrete slabs are to be 4” thick. The depth of the control joint should be 0.8” or just over 3/4”. I am able to verify the saw cut joint is deep enough at the area observed near the front office.
Governing Rule: No Action
Compliant Item 7: Customer allowed them to attempt to repair issues multiple times and end results made everything worse.
Investigator’s Observation: Not Verified. This is a statement made by the complainant that does not imply poor workmanship.
Governing Rule: No Action
2023-01373 Compliant Item 1: Excessive cracking; heaving
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 1.
Governing Rule: No Action
2023-01373 Compliant Item 2: Floors extremely un-level
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 2.
Governing Rule: No Action
2023-01373 Compliant Item 3: Excessive crazing; unsightly finishing
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint items 4 and 9.
Governing Rule: No Action
2023-01373 Compliant Item 4: Improper expansion joints crooked, not deep enough redone made it worse
Investigator’s Observation: This complaint item has been previously addressed in complaint items 3a and 3b. 3a is not verified and 3b is verified.
Governing Rule: No Action
2023-01373 Compliant Item 6: Damage on wall during pour (concrete splattered on exposed block walls
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 8.
Governing Rule: No Action
2023-01373 Compliant Item 7: Mis-poured interior footers not leveled or repaired, fill in's unsightly
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 5.
Governing Rule: No Action
2023-01373 Compliant Item 9: Grinding exposed aggregate
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 9.
Governing Rule: No Action
2023-01373 Compliant Item 11: Foundation footers poured on un-compacted dirt
Investigator’s Observation: Not Verified. There is no evidence or proof to substantiate this complaint item.
Governing Rule: No Action
2023-01373 Compliant Item 12: Stair landing cutouts on wrong stairs/ patch work unsightly
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 6.
Governing Rule: No Action
2023-01373 Compliant Item 13: It was discovered that the first floor slab is less than 3"
Investigator’s Observation: Not Verified. I am unable to verify whether or not the entire first floor concrete slab is less than 4” other than the small area observed in the kitchen.
Governing Rule: No Action
2023-01373 Compliant Item 14: All the penetrations in the entire kitchen floor are all messed up.
Investigator’s Observation: Not Verified. I am unable to determine whether or not this may have been the responsibility of another contractor to set the elevations of the plumbing access points prior to the respondent pouring the concrete.
Governing Rule: No Action
2023-01373 Compliant Item 15: They used an ordinary silicone to fill a giant crack instead of proper material
Investigator’s Observation: Not Verified. There is insufficient evidence to substantiate that the respondent used ordinary silicone to fill a giant crack instead of proper material.
Governing Rule: No Action
Addendum Compliant Item 1: it was discovered that the first floor slab is less than 3"
Investigator’s Observation: Not Verified. This complaint item has been previously addressed in 2023-01373 complaint item 13.
Governing Rule: No Action
Addendum Compliant Item 2: when pouring occurred for the 2nd story, concrete dripped all over the window sill and wall (where the boom entered in through the window opening) also a lot of concrete slurry leaked from the 2nd story down the walls into the first story. All of this mess is still there
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 8.
Governing Rule: No Action
Addendum Compliant Item 3: all the penetrations in the entire kitchen floor are all messed up.
Investigator’s Observation: Not Verified. This complaint item has been previously addressed in 2023-01373 complaint item 14.
Governing Rule: No Action
Addendum Compliant Item 4: cracking everywhere
Investigator’s Observation: Verified. This complaint item has been previously addressed in complaint item 1.
Governing Rule: No Action
Addendum Compliant Item 5: they used a ordinary silicone to fill a giant crack instead of proper material
Investigator’s Observation: Not Verified. This complaint item has been previously addressed in 2023-01373 complaint item 15.
Governing Rule: No Action...
(All errors contained in the original).
Investigator Fagerburg conducted an Interim Compliance Jobsite Investigation on January 31, 2024, and a final Compliance Jobsite Investigation on February 12, 2024. In his notes regarding the same, Investigator Fagerburg noted the following in pertinent part:
Investigator Notes:
1: During the original jobsite inspection conducted on December 1, 2023 at 11:30 am the complainant clarified the word services in complaint item 2 as being surfaces.
2: On Wednesday January 3, 2024 I received an email from the respondent indicating an apparent misunderstanding regarding the directive requirements. In response to this email I informed the respondent that there are numerous items requiring correction and provided the directive expiration date of January 8, 2024. On Wednesday January 3, 2023 the respondent informed me of confusion as to which items required correction and requested an extension to the directive. On January 4, 2024 at 8:47 am, I responded to the email informing the respondent there are 2 pages of items to be corrected on the directive followed by 3 pages that do not require correction. I again provided the directive expiration date and informed the respondent that I will contact the complainant after the directive expires for an update and that an extension to the directive will be considered at that time, considering the respondent requested clarification to the directive.
3: On January 4, 2024 the respondent sent an email to the complainant with the following; “I would like to schedule something asap to start on the corrections needed by the ROC. I can start this weekend Jan. 5,6,7 to try and complete as much as possible. I preferred night work when the business is closed and nobody is around please”.
4: On January 5, 2024 the business owner responded to the email with the following; “Jerry, please inform Ivan that he has access to building commencing at 6 pm tomorrow night after the classes. Same with Sunday. He needs to be for warned though, that if he incurs additional damage, or additional unsightly work, or anything that will be anything other than the finished floor that I paid for, the work will stop. There will be no extension as he again waited for the last minute to schedule anything. He gave me no time to make arrangements for access or preparations and on his accord waited till close to the deadline. Furthermore, Oscar is not allowed on the property. Ivan needs to manage this work as well as you”.
5: On January 9, 2024 at 8:29 am after the original directive expired I informed all parties that the directive will be extended an additional 30 days with a new expiration date of February 6, 2024.
Investigator Notes Continued:
6: On January 25, 2024 I received an email from the business owner voicing concern regarding the quality of the corrective work and requesting an Interim Compliance Jobsite Inspection. After review with my supervisor an Interim Compliance Jobsite Inspection was scheduled for January 31, 2024 at 11:30 am.
7: During the Interim Compliance Jobsite Inspection the respondent acknowledged that more work is needed to comply with the directive and access was granted by the business owner on 7 separate dates in the evenings or weekends since requesting access on January 4, 2024 with the last date of access being January 23, 2024. The business owner acknowledged that the building is sometimes used in the evenings after business hours as well as some weekends for meetings and other events.
8: It is noted that concrete crack repairs will be noticeable.
Compliance Findings:
Compliant Item 1: Excessive cracking & movement on both first floor & second floor slabs.
Investigator’s Observation: On the first floor of the building all but a few of the cracks within the perimeters of the control joints have been filled with Ardex Concrete Patch material. The Ardex Concrete Patch material appears to have been applied with a trowel and is flush with the surrounding surface. See P (3), P (10), P (11), P (13), P (15) P (27) and P (28). On the second floor of the building all but a few of the cracks within the perimeters of the control joints have been filled with the same Ardex Concrete Patch material. See P (16), and P (17). However, the finished look throughout is not uniform
with the surrounding surface.
Governing Rule: The respondent did not complete the corrective work and is not incompliance with the directive.
Compliant Item 2: Uneven services throughout building.
Investigator’s Observation: The respondent made no attempt to correct this complaint item.
Governing Rule: The respondent is not incompliance with the directive.
Compliant Item 3b: Saw cut joints and crooked lines
Investigator’s Observation: On the first floor of the building the control joints observed are filled with a white rubberized type material that attracts dirt and is unsightly. On the second floor of the building I observed saw cut control joints with chipped edges, crooked saw cuts and double saw cuts that appear to have been cleaned with no filler material applied with the exception of a cold joint at the south stair landing. See P (14) thru P (17), P (20), thru P (22), P (34) and P (35). During the Interim Compliance Jobsite Inspection on January 31, 2024 at 11:30 am the respondent explained that the control joints are to be filled with Ardex Concrete Patch material and new control joints will be cut.
Governing Rule: The respondent did not complete the corrective work and is not incompliance with the directive.
Compliant Item 4: Multiple areas that had to be grinded down due to extreme high spots on finish floor.
Investigator’s Observation: The respondent made no attempt to correct this complaint item.
Governing Rule: The respondent is not incompliance with the directive.
Compliant Item 5: Isolated footers in wrong location and had to modify per structural engineer guidance.
Investigator’s Observation: On the first floor of the building the respondent made an attempt to grind down previous repair that was not flush with the surrounding surface and refinished the area using Ardex Concrete Patch material. The Ardex Concrete Patch material appears to have been applied with a trowel and is flush with the surrounding surface. However, the finished look is not uniform. See P (4).
Governing Rule: The respondent is not incompliance with the directive.
Compliant Item 6: Second story stair landings had elevation to high and had to be replaced.
Investigator’s Observation: At the north exit door the respondent made an attempt to repair a previous repair that was loose and crumbling. The repair appears to have been made using Ardex Concrete Patch material that appears to have been applied with a trowel and is flush with the surrounding surface. However, the finished look is not uniform. See P (26). At the north stair landing the respondent made repairs to a cold joint using Ardex Concrete Patch material. The Ardex Concrete Patch material appears to have been applied with a trowel and is flush with the surrounding surface. However, the finished look is not uniform. See P (14).
Governing Rule: The respondent is not incompliance with the directive.
Compliant Item 8: Concrete splatter on interior block walls that had a natural finish.
Investigator’s Observation: The respondent made no attempt to correct this complaint item. See P (18) thru P (20).
Governing Rule: The respondent is not incompliance with the directive.
Compliant Item 9: Exposed aggregate after grinding down high spots. Preventing customer to do polished concrete floors through out building.
Investigator’s Observation: The respondent made no attempt to correct this complaint item. Per ROC workmanship standards there is no acceptable tolerance for improper, inadequate or unsightly concrete finishing. See P (18) and P (20).
Governing Rule: The respondent is not incompliance with the directive.
2023-01373 Compliant Item 5: Spalling; damage during repair attempts (floor pans and stair landings.
Investigator’s Observation: The respondent made no attempt to correct this complaint item. See P (29) and P (30).
Governing Rule: The respondent is not incompliance with the directive.
2023-01373 Compliant Item 8: Edging not finished/poured and not finished
Investigator’s Observation: The respondent did not complete correcting the edging along the CMU block wall throughout the second floor of the building. See P (31) thru P (33).
Governing Rule: The respondent is not incompliance with the directive.
2023-01373 Compliant Item 10: Vapor barrier popping through floor
Investigator’s Observation: The respondent made no attempt to correct this complaint item. See P (23).
Governing Rule: The respondent is not incompliance with the directive.
(All errors contained in the original).
On February 14, 2024, 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).
On or about February 27, 2024, Respondent submitted an Answer to the Registrar.
On or about March 12, 2024, a Notice of Hearing was issued setting a hearing on April 25, 2024, at the Office of Administrative Hearings, an independent state agency.
After a continuance, the hearing was held on June 3, 2024 and July 29, 2024.
At hearing, Investigator Fagerburg testified as to the Registrar’s involvement and the above timeline and findings from his inspections.
Investigator Fagerburg testified that due to a misunderstanding by Respondent, he extended the Directive due date to February 6, 2024. However, Respondent did not notify Investigator Fagaerburg until January 3, 2024.
As to the corrective work performed, Investigator Fagerburg testified that some of the joints and cracks were repaired, but the repairs did not match and were noticeable.
Investigator Fagerburg also testified that he was made aware of some attempts by Respondent to gain access to the jobsite, only for Ms. Clute to cancel.
In addition, Investigator Fagerburg testified that starting on February 1, 2024, Complainant was no longer involved, and Respondent would have to be granted access from Ms. Clute, however, Ms. Clute would not allow Respondent back on the property. Yet, Investigator Fagerburg testified that Complainant did not deny access.
Further, Investigator Fagerburg testified that there was no work performed from January 31, 2024 to the end of the Directive.
Finally, Investigator Fagerburg testified that he performed a prehearing jobsite inspection on May 31, 2024, and the jobsite was in the same condition.
Complainant offered the testimony of the Qualifying Party, Jerry Finney, Jr.
Mr. Finney testified that throughout Respondent’s work, Ms. Clute expressed concerns, such that Ms. Clute required him to be onsite when the corrective work was being done.
Mr. Finney testified that Respondent did not even request access until January 5, 2024, and that while Ms. Clute allowed access on January, 5-7, no work was performed. On January 8, 2024, Respondent worked about three hours.
Also, Mr. Finney testified as to the following dates:
January 11, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:30 p.m. until 9:30 p.m.
January 17, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:30 p.m. until 10:30 p.m. or 11:00 p.m.
January 18, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:00 p.m. until 10:30 p.m.
January 22, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:00 p.m. until 12:00 a.m.
January 23, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:00 p.m. until 12:00 a.m.
January 24, 2024 – access was granted from 6:00 p.m. until 5 a.m., but Respondent did not use all of the time and was working from 6:00 p.m. until 11:00 p.m.
Finally, Mr. Finney testified that there was no effort to perform any other work after January 24, 2024.
Mr. Finney testified that he believed that Respondent was given approximately 111 hours in total to complete the corrective work, from January 6, 2024 through the end of the Directive.
Further, Mr. Finney testified that he received notice from Ms. Clute on January 29, 2024, that he no longer had any access to the building.
Respondent offered the testimony of Ivan Sanchez and Juan Contreras.
Mr. Sanchez was Respondent’s owner and had been in business since 2013. Mr. Sanchez testified that prior to this project, Complainant and Respondent worked on many projects together and had a good relationship.
Mr. Sanchez testified that one of the main reasons for the poor work on the second floor was that the concrete pump broke in the middle of the project so it became an issue with the rest of the project.
Further, Mr. Sanchez testified that the reason for the dismissal of Ms. Clute’s complaint was due to her denying Respondent access, and even would not allow him to bring his superintended, Oscar to the job site, so he hired Mr. Contreras.
As to the extension of the Directive, Mr. Sanchez testified that he misunderstood the Directive and believed that all items required, “No Action”, which is why he did not start on the corrective work upon receipt of the Directive.
As to the corrective work performed, Mr. Sanchez testified that areas were patched, but it was difficult to match the concrete, so Ms. Clute did not like the look of the corrective work. Also, grinding down the floor take a lot of times he just could not complete the Directive in full. Mr. Sanchez also offered a financial settlement to Ms. Clute so she could choose flooring to her liking, however, there was no final agreement reached.
Mr. Sanchez also testified that he was given access by Mr. Finney, but when Mr. Finney would leave the property, Respondent’s crew would also leave around the same time to avoid any further problems with Ms. Clute. Mr. Sanchez believed that this was because Ms. Clute told Mr. Finney that he had to, “sit there any babysit them each night...”
Further, Mr. Sanchez testified that there were times when Ms. Clute told them to come to the property, only to not be allowed in, or when it was a holiday weekend, or when other events were occurring at night.
Mr. Sanchez testified that on January 29, 2024, he received an e-mail from Mr. Finney that he was no longer able to access the building, and that Mr. Sanchez would have to contact Ms. Clute directly for access.
Too, Mr. Sanchez testified that at the January 31, 2024 interim Compliance Jobsite Inspection, Investigator Fagerburg offered various solutions to the parties, but Ms. Clute just got mad, and after that Inspection, Respondent was no longer granted access.
Mr. Contreras testified that he was hired and started working for Respondent on January 8, 2024, so he was unaware of the access issues prior to that time period.
Mr. Contreras also testified that there were times that access was denied, and that the crew did not feel comfortable being at the jobsite without Mr. Finney present. Further, Mr. Contreras testified that neither Mr. Finney nor Ms. Clute ever asked why Respondent did not stay to 5:00 a.m.
As to the specific days, Mr. Contrerars testified that they worked until 2:00 a.m. on January 22 and 24, 2024, but all other times they worked left at approximately 10:00 p.m. or shortly after Mr. Finney left.
Mr. Contreras testified that he believed the crews worked about 34 hours on the corrective work.
Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 284715 was first issued on April 29, 2013, and reflected that there was one open case, namely the present case.
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 preponderance of the evidence established, and Mr. Sanchez admitted, that Respondent’s work was not completed in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The preponderance of the evidence also established Respondent failed to complete the corrective work following the Directive being issued. First, the tribunal finds Mr. Sanchez’ testimony that he did not know to complete the Directive disingenuous, as not only was this the second Directive he received in the matter, but also that there was a clear explanation of what the Written Directive was and/or at least how to contact someone if he did not understand the same. By waiting until just before the Directive period ended to contact Investigator Fagerburg just continued to make this matter snowball out of control.
There was also no question that Ms. Clute’s lack of flexibility too contributed to the lack of Respondent being able to schedule crews for work. While the tribunal certainly understands Mr. Sanchez’ hesitancy to perform work when Mr. Finney was not present, there was no evidence presented that they attempted to do so with a reprimand/complaint from Ms. Clute, or some other definitive statement from Ms. Clute that working unsupervised was prohibited. Again, it would have been up to Mr. Sanchez to inquire if he believed this to be the case, but he failed to do so. There was also no excuse for Ms. Clute not allowing work to be performed between the interim compliance jobsite inspection and the final inspection, approximately 7 days later. However, the tribunal does not find this to be a full denial of access given the events describe above.
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. 284715 for a period of three days.
It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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)(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, August 13, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Brian A, Weinberger
[email redacted]
Julianne C. Wheeler
[email redacted]
By: OAH Staff