ALJDEC - Licensing

2024A-07449-CHC-ROC · Registrar of Contractors · 2025-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Megan McManus,

COMPLAINANT,

v.

Pachecos Landscaping LLC

License No. ROC 344002,

RESPONDENT.

No. 2024A-07449-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 21, 2025.

APPEARANCES:

For Complainant: Megan McManus.

For Respondent: Failed to appear.

For the Registrar of Contractors: Investigator Gregory Kinsfather.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1–3.

_____________________________________________________________________

FINDINGS OF FACT

Pachecos Landscaping LLC (Respondent) was the holder of License No. 344002 issued by the Arizona Registrar of Contractors (Registrar) on March 24, 2023.

On or about May 14, 2024, Megan McManus (Complainant) entered into a contract with Respondent for, among other things, removal of rock from Complainant’s back yard and laying pavers.

On or about July 2, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.

The Registrar assigned the complaint to Investigator Kinsfather, who issued a Jobsite Inspection Notice on July 5, 2024, scheduling the inspection for July 24, 2024.

Investigator Kinsfather conducted the jobsite inspection on July 24, 2024, and Respondent was not present. Following the inspection, Investigator Kinsfather issued a Written Directive From the Registrar to Respondent on December 11, 2024, that provided as follows:

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

Complaint Item: 1 - Less than 30 days after completion: first rain, pavers are lifted and shifted, so the base wasn’t compacted?

Investigator’s Observation: The complainant pointed to multiple locations in each area of paver patio where there were gaps were exceeding industry standard of 1/8th inch. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 2 - The concrete holding it shouldn’t be just slapped against the side on top of dirt?

Investigator’s Observation: There were multiple areas throughout the project where the concrete edge restrains were failing. Large chunks were separating form the run of restraint. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 4 - Double gate is already hitting pavers and wall is leaning.

Investigator’s Observation: The respondent demonstrated the gate rubbing along the pavers when opening and closing it. Additionally, there is a visible lean on the set of cement masonry units that the gate is attached to. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 5 - trailer pad (right side facing house) the water goes under the drain

Investigator’s Observation: The complainant pointed out the area where the paver RV pad and the Paver path through to the backyard meet. This junction had a channel drain installed. The complainant ran a hose in this drain, the water didn't drain, it simply flowed out of the area and started to flood the back side of the RV pad. After a few minutes there was still no water making it to the popup drainage emitter at the front of the property. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 6 - Trailer pad bricks are sinking and lifting, sand is vanishing below. Not compacted. Flooding.

Investigator’s Observation: Verified, the pad had multiple instances of gaps exceeding the industry standard of 1/8th inch. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 7 - Trailer pad drain cover shifted to no longer fitting. Not

compacted. Flooding.

Investigator’s Observation: Verified, the drain cover grate did not align with the channel and would not lay flush in the channel as intended. The respondent will correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 15 - Patterning on pavers isn’t uniform

Investigator’s Observation: Verified, I did observe instances of inconsistent patterning throughout the project. The respondent will correct by appropriate means.

Governing Rule: Not Applicable: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship.

The Written Directive required Respondent to notify Investigator Kinsfather of Respondent’s compliance with the directive prior to 5:00 p.m. on January 3, 2025.

Respondent contacted Investigator Kinsfather on January 3, 2025, requesting an extension, but no work had been done and Complainant did not agree to an extension. Investigator Kinsfather did not grant an extension.

On January 15, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on January 29, 2025. Respondent’s Answer stated that the deficiencies were at the direction of Complainant and that he was not given the opportunity to correct the work.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On February 18, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for March 21, 2025.

The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record. During the investigation, Investigator Kinsfather achieved communication with Respondent using the same address and email address.

The hearing was held via Google Meet on March 21, 2025.

Respondent did not request that the hearing be further continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Kinsfather testified in support of his investigation.

Complainant testified in support of Investigator Kinsfather’s investigation. She also testified that there were other issues, which were not included in the directive that she would want to support.

Respondent failed to appear at the Hearing.

Administrative notice was taken of Respondent’s prior License record on April 7, 2025. According to that record, Respondent’s License No. 344002 was suspended for non-renewal on March 31, 2025. There was one open complaint against the license.

CONCLUSIONS OF LAW

Respondent was deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.

This matter lies within the Registrar’s jurisdiction.

Respondent’s suspended license does not deprive Complainant of her right to prosecute her 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.”

For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. For complaint-specific items, only alleged violations identified by the Investigator and deemed uncorrected are noticed in the Citation: as stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to charge Respondent, charges were not incorporated into the Citation. The Registrar’s process provides the Respondent an opportunity to correct its deficient work by appropriate means; without that opportunity, the alleged deficiency is not ripe for hearing.

The preponderance of the evidence established that Respondent failed to perform its 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 preponderance of 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 suspend for 5 days Respondent’s License No. 344002.

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). 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, April 10, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Pachecos Landscaping LLC

[email redacted]

Megan McManus

[email redacted]

Greg Kinsfather

[email redacted]

By: OAH Staff