ALJDEC - Licensing
2024A-04450-CHC-ROC · Registrar of Contractors · 2024-09-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Steven Ray Lewis ,
COMPLAINANT
v.
Drummond Masonry LLC
License No. ROC 338037,
RESPONDENT
No. 2024A-04450-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened on August 30, 2024. The record was held open until September 6, 2024, for the submission of additional documents.
APPEARANCES:
For Complainant: Steven Lewis.
For Respondent: Failed to appear.
For the Registrar of Contractors: Investigator Cliff Corlett.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Registrar Email A.
_____________________________________________________________________
FINDINGS OF FACT
Drummond Masonry LLC (Respondent) was the holder of License No. 338037 issued by the Arizona Registrar of Contractors (Registrar) on May 6, 2022.
On or about November 27, 2023, Steven Lewis (Complainant) entered into a contract with Respondent for, among other things, installation of a three tier retaining wall.
On or about April 19, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.
The Registrar assigned the complaint to Investigator Corlett, who issued a Jobsite Inspection Notice on April 25, 2024, scheduling the inspection for May 8, 2024.
Investigator Corlett conducted the jobsite inspection on May 8, 2024, and Respondent was not present. Following the inspection, Investigator Corlett issued a Written Directive From the Registrar to Respondent on May 21, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Plan Non-Compliance: Wall not built to specified plan.
Investigator’s Observation: The southern section of walls are out of alignment with the other walls. . . .
Complaint Item: 2 - Construction Accuracy: Wall constructed out of square.
Investigator’s Observation: The southern section of walls are out of alignment with the other walls. . . .
Complaint Item: 4 - Project Incompletion: Work stopped with incomplete structures.
Investigator’s Observation: RESPONDENT SHOULD COMPLETE THIS WALL PRROJECT PER CONTRACT. . . .
Complaint Item: 5 - Financial Issue: A $70,000 draw was taken with not all materials delivered.
Investigator’s Observation: Respondent should properly complete this wall project for the negotiated price. . . .
Complaint Item: 6 - Structural Deterioration: Wall deteriorating prematurely.
Investigator’s Observation: One block face appears to have been damaged and then chipped away in an attempt to install another block face. Respondent should properly replace the damaged block. . . .
Complaint Item: 7 - Safety Concern: Parts of the wall falling off.
Investigator’s Observation: One block face appears to have been damaged and then chipped away in an attempt to install another block face. [] Respondent should properly replace the damaged block. . . .
Complaint Item: 9 - Grading Problem: Backyard not graded to specified level.
Investigator’s Observation: Grading is "rough" however it appears the grade slopes from the wall toward the house. . . .
Complaint Item: 10 - Sealing Issue: Block showing water stains, not properly sealed.
Investigator’s Observation: Masonry wall sealing incomplete.
The Written Directive required Respondent to notify Investigator Corlett of Respondent’s compliance with the directive prior to 5:00 p.m. on June 7, 2024.
Investigator Corlett delivered the Directive by email and mail. In a response email to the Directive, Respondent refused to do work in compliance with the Directive, claiming he was owed money. He reiterated his refusal to comply with the Directive on June 10, 2024.
On June 11, 2024, Complainant confirmed that no corrective work had been performed on the project.
On June 14, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on July 6, 2024. Respondent’s Answer stated that he was owed money.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On July 23, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing on August 30, 2024, at 9:00 AM.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record. On August 26, 2024, Investigator Corlett informed the parties that he might be delayed in attending the hearing in this matter. Respondent responded as follows:
Just so you know, nobody gives a s***. I already work with another license in another state. Don't rush, only person going to be there is the Judge and s***dip, let him know he will he served next month.
Dueces
The hearing was held via Google Meet on August 30, 2024.
Respondent did not appear. Consequently, Respondent did not present any evidence to defend its license.
Investigator Corlett testified in support of his findings. He testified that Respondent’s position was that the scope of work had changed significantly and that he was owed money. However, Respondent never provided any evidence to support that position.
Complainant testified that Respondent took his money and never finished the work.
Administrative notice was taken of Respondent’s prior License record on September 24, 2024. According to that record, Respondent’s License No. 338037 was suspended on May 22, 2024, for non-renewal. There were no other complaints on its license.
CONCLUSIONS OF LAW
Respondent was deemed to have received the Notice of Hearing. It failed to appear knowingly.
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended license did not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense 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 preponderance of the evidence established that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).
The preponderance of the evidence established that Respondent failed to perform all work 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 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 revoke Respondent’s License No. 338037.
It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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, September 26, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Steven Ray Lewis
[email redacted]
Drummond Masonry LLC
[email redacted]
Cliff Corlett
[email redacted]
By: OAH Staff