ALJDEC - Licensing

2024A-03939-CHC-ROC · Registrar of Contractors · 2024-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Laurie Aaland Moore,

COMPLAINANT,

v.

North American Patio Systems, LLC

License No. ROC 345280,

RESPONDENT.

No. 2024A-03939-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 9, 2024

APPEARANCES: Complainant Laurie Aaland Moore appeared on her own behalf. Omar Ortega appeared on behalf of Respondent North American Patio Systems, LLC. Arizona Registrar of Contractors Investigator Jim Dimond appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainant Laurie Aaland Moore’s Exhibits 1-24; Administrative Notice taken of Agency Record

FINDINGS OF FACT

North American Patio Systems, LLC (“Respondent”) is the holder of License Number 345280 issued by the Arizona Registrar of Contractors (“Registrar”). Omar Ortega is Respondent’s Qualifying Party and sole Member.

On or about October 9, 2023, Laurie Aaland Moore (“Complainant”) contracted with Respondent for the “installation of a concrete overlay product on the homes [sic] already existing driveway.” The contract price was $8,712.00. Complainant has paid Respondent in full.

On or about April 4, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Jim Dimond. After a May 7, 2024 Jobsite Inspection, at which both parties were present, Investigator Dimond issued a Written Directive to Respondent, dated June 10, 2024, 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 Friday, June 28, 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.

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

Complaint Item: 1 - Performed work outside of scope the contractors of license. Complete failure of overlay.

Investigator’s Observation: The Respondent holds a CR-3 Awnings, Canopies, Carports and Patio Covers and performed the installation of a concrete overlay on an existing, uncovered driveway.

This work was in no way incidental to the scope of the respondent's license.

The respondent is only contract within the scope of his license in an appropriate manner.

Complaint Item: 2 - Lifting of overlay. Cracks that expose future water damage.

Discolouration/stains. Poor application.

Investigator’s Observation: At the sloped, upper driveway, the overlay is beginning to break up at the downhill panels.

There are holes in the surface at the bottom of the driveway at the apron.

At the control joints, the product is cracking.

The broom finish is inconsistent.

At the bottom of the drive, the triangular panel has the brush marks running north/south while the next panel south has the brush marks running east/west.

Product used was Cohill’s Proform Pro surfacer

Due to the fact that this work is outside of the scope of the respondent's license, corrective work cannot be directed.

All errors in original.

Following the expiration of the Written Directive, Investigator Dimond ascertained that Respondent had not complied with the Written Directive. Thereafter, Investigator Dimond forwarded the Complaint to the Registrar’s Legal Department. 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 Dimond testified consistently with the findings contained in his Jobsite Inspection Notes and the Written Directive. Investigator Dimond testified that Respondent was not licensed to perform the work it performed at Complainant’s home. In order to be able to comply with the Written Directive, Respondent would have had to become properly licensed and was given an opportunity to do so.

Investigator Dimond testified that when Respondent agreed to install a concrete overlay on the existing driveway, Respondent accepted the surface upon which it performed its work and if there was an issue with that surface, Respondent should have notified Complainant that the substrate needed to be corrected and incorporated such into the contract, or declined to contract to work on the project.

The Registrar’s substantive policy statement 2017.01 sets out the following pertinent information:

Acceptance of the Surface

As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.

Complainant testified that Mr. Ortega assured her based upon his experience, that the overlay would withstand cycles of freezing and thawing. However, the overlay failed within four months. Complainant testified that she did her due diligence, spoke with two of Respondent’s references, and referenced Respondent’s website that promotes Respondent as a concrete contractor with seventeen years of experience in the industry.

Complainant testified regarding the timeline of events that led to the filing of the instant Complaint. Complainant referenced several photographs during her testimony that depict the deficiencies in Respondent’s work.

Complainant testified that due to her husband’s health issues, they have to sell their home and were unable to do so due to the condition of the driveway. Consequently, they had to hire another contractor to perform the necessary work.

Mr. Ortega acknowledged that he told Complainant he could perform the work he contracted to perform, and that he did so. Mr. Ortega believed the work was “good,” however, when Complainant expressed concerns to him prior to filing the Complaint, he re-surfaced approximately eighty percent of the driveway. Mr. Ortega asserted that the workmanship “is proper” and blamed the product that he used.

Mr. Ortega did not dispute Investigator Dimond’s findings. Mr. Ortega asserted that he cannot perform corrective work because he has not obtained the proper licensure. Mr. Ortega opined that the work he performed was “like painting” and that he had only been licensed for approximately two and a half months at the time he contracted with Complainant and believed because it was not “structural,” that it would be considered “handyman” work. Mr. Ortega attributed his shortcomings to inexperience.

Administrative notice is taken of Respondent’s prior License record on September 23, 2024. Such prior License record reflects that Respondent’s License Number 345280, a Specialty Dual CR-3 Awnings, Canopies, Carports and Patio Covers license, was first issued on May 31, 2023, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 professional and 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’s license, a Specialty Dual CR-3 Awnings, Canopies, Carports and Patio Covers license, is limited in scope and does not include concrete coatings. The fact that Mr. Ortega was newly licensed at the time he contracted with Complainant does not excuse his ignorance of the scope of his license. Further, Mr. Ortega’s unreasonable belief that concrete coating is “like painting” and falls within the “Handyman Exemption” is quite concerning and not credible considering the contract amount was $8,712.00. 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 complete the corrective work following the Written Directive being issued and acknowledged such, as it failed to obtain the proper licensure in order to do so. The evidence further established that valid justification did not exist for such failure, as Respondent did not even attempt to obtain proper licensure. 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 Number 345280 for a period of seven (7) 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 (30) 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, September 24, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

North American Patio Systems, LLC

[email redacted]

Laurie Aaland Moore

[email redacted]

Jim Dimond

[email redacted]

By: OAH Staff