ALJDEC - Licensing
2024A-02309-CHC-ROC · Registrar of Contractors · 2024-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Irv Arenberg,
COMPLAINANT
v.
Durango Masonry and Tile LLC
License No. ROC 337830,
RESPONDENT.
No. 2024A-02309-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 24, 2024
APPEARANCES: Irv Arenberg (Complainant) represented himself. Gregory Link represented Durango Masonry and Tile LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On June 7, 2024, the Arizona Registrar of Contractors (Registrar or ROC), issued a Notice of Hearing setting the above-entitled for hearing on July 24, 2024.
The Notice of Hearing provided that the complaint and citation alleged that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22); Arizona Administrative Code R4-9-108(A).
2. A hearing was held on July 24, 2024.
3. At hearing, Complainant testified on behalf of himself and presented the testimony of Barbara Arenberg. Gregory Link, the project supervisor for the project that is the subject of the complaint, testified on behalf of Respondent. Robert DiAlto, an investigator for the Registrar (Investigator DiAlto), provided testimony regarding his investigation of the complaint. 4. On August 22, 2022, Respondent agreed to remodel Complainant’s home for the amount of $22,000.00.
5. Complainant paid Respondent $22,000 for the project.
6. On August 22, 2022, Respondent started construction.
7. On December 9, 2022, Respondent stopped construction.
8. On February 26, 2024, the Registrar received a complaint from Complainant alleging poor workmanship on the part of Respondent.
9. The Registrar assigned the complaint to Investigator DiAlto.
10. On March 20, 2024, Investigator Robert DiAlto conducted a job-site inspection. At the job-site inspection, Investigator DiAlto discovered that Respondent performed poor work in connection with complaint items 2, 3, 4, and 5.
11. On March 25, 2024, the Registrar issued a Directive to Respondent that provided, in relevant 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 04/19/2024.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - New balustrades not installed correctly and to the architects drawings specs, they damaged and had to buy more new ones
Investigator’s Observation: Verified. I observed that the installation does not appear to be in accordance with the Manufacturer’s instructions and specifications, and is in violation of IRC R312.1.3 Opening Limitations. Required guards shall not have openings from the walking surface to the required guard height that allow a sphere of 4” in diameter to pass through. The complaint item does not meet minimum workmanship standards. The Respondent shat correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: 3 - Installed in an incorrect location by 2 feet, and to correct problem, needs to be corrected at big cost in time-material
Investigator’s Observation: Verified. The Complainant stated that he provided the Respondent with layout and the Respondent did not follow plans and specifications. The Respondent stated that he didn’t install in the same location as the previous handrail and balusters because it would not be installed over an existing beam then.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: 4 - French door was sold to me stating it was custom door was installed improperly and door was not custom. was stock
Investigator’s Observation: Verified. I observed light from the exterior at several locations around the door. There are visible gaps at the interior door trim and the exterior perimeter is not finished properly. Exterior lath is visible at the head jamb and there is a large gap between the stucco and the door. The complaint item is not installed to professional industry standards. The Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: 5 - Walk on deck was repaired improperly and is now leaking and did not finish completely
Investigator’s Observation: Verified. I observed several areas where the anti-slip sand is not visible and appears to be missing from the finished surface. The overall deck finish is inconsistent and varies. The Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
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12. On or about April 1, 2024, Complainant filed an addendum to the complaint and added the following items:
Roof repair and removal or original balustrades done improperly, and now roof repair is leaking again, .........
Walk on deck was repaired improperly and is now leaking and did not finish completely
13. On or about April 22, 2024, Investigator DiAlto conducted a second job-site inspection regarding the addendum items. Investigator DiAlto discovered that Respondent performed poor work in connection with the addendum items.
14. On April 22, 2024 amended the Directive with a new compliance due date of May 10, 2024. The Amended Directive added Complaint Item 1 and Modified Complainant Item 5. The Amended Directive provided, in relevant part as follows:
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Compliance Item: 1 - Roof repair and removal of original balustrades done improperly, and now roof repair is leaking again,
Investigator’s Observation: Verified. Complainant demonstrated leak by pouring two pitchers of water at the inside corner at the east post. Within a few minutes water was observed leaking thought the soffit and down the back side of the fascia. The Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
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Compliance Item: 5 - Walk on deck was repaired improperly and is now leaking and did not finish completely
Investigator’s Observation: Verified. The first part of this complaint item is addressed in complaint item # 1. I observed several areas where the anti-slip sand is not visible and appears to be missing from the finished surface. The overall deck finish is inconsistent and varies. The Respondent shall correct by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
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15. On May 13, 2024, Complainant notified Investigator DiAlto that he had not received communication from Respondent and that Respondent performed no corrective work.
16. Respondent failed to correct the items listed in the Amended Directive.
17. On May 13, 2024, Respondent’s representative notified Investigator Alito that Respondent’s license was no longer suspended.
18. On May 16, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1154 (A)(3) and (22); Arizona Administrative Code R4-9-108(A).
19. Respondent filed a timely answer to the Citation.
20. At hearing, Complainant explained that Respondent performed poor work and did not complete the project. Mr. Link did not dispute that Respondent failed to complete the project. Mr. Link stated that Respondent did not complete the work because its license was suspended at the time. Mr. Link disputed that Respondent was “100%” at fault for the problems with the balustrades. Mr. Link stated that Complainant wanted Respondent to continue working which is why the spacing is “off.” Mr. Link stated that “the only problem with” the balustrades is the 2 to 3 inch gap between the balustrades. Mr. Link asserted that Complainant approved the spacing. However, there was no evidence that Respondent warned Complainant of the damage that could result from the inappropriate spacing, nor did Respondent obtain a written waiver from Complainant.
21. Administrative notice is taken of Respondent’s prior License record on August 13, 2024. Such prior License record reflects that Respondent’s license number 33783 was first issued on April 28, 2022, and is active. Such prior License record also reflects that one complaint has resulted in discipline against Respondent’s license, and one complaint was resolved or settled by Respondent after the issuance of a corrective work order or formal citation.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).
5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 337830 issued to Durango Masonry and Tile LLC, for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Irv Arenberg
[email redacted]
Durango Masonry and Tile LLC
[email redacted]
By: OAH Staff