ALJDEC - Licensing

2024A-10258-CHC-ROC · Registrar of Contractors · 2025-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Randall John Losey and Judith Rounds,

COMPLAINANT,

Lucero Construction Group LLC,

License No. ROC 339837, 352998,

RESPONDENT.

No. 2024A-10258-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 17, 2025, and October 14, 2025.

APPEARANCES:

For Complainant: Randal Losey and Judith Rounds.

For Respondent: Bradley Weech.

For the Registrar of Contractors: John Chester.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits. Respondent’s Exhibits.

_____________________________________________________________________

FINDINGS OF FACT

Lucero Construction Group LLC (Respondent) was the holder of License Numbers 339837 and 352998, issued by the Arizona Registrar of Contractors (Registrar) on August 2, 2022, and June 25, 2024, respectively.

On or about January 26, 2024, Randall John Losey and Judith Rounds (Complainant) entered a contract with Respondent for, among other things, constructing a driveway.

On or about September 10, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment, poor work, and other issues.

The Registrar assigned the complaint to Investigator Chester, who conducted noticed Jobsite Inspections on October 7, 2024, and November 6, 2024.

Following the inspections, Investigator Chester issued a Written Directive From the Registrar to Respondent on November 13, 2024, requiring Respondent to correct thirteen Complaint Items by appropriate means.

The Written Directive required Respondent to notify Investigator Chester of Respondent’s compliance with the directive prior to 5:00 p.m. on Friday December 20, 2024. The Directive included the following issues to be corrected:

Complaint Item 1: - grind /make consistent the ragged and unlevel expansion joint seem between the 2 separate pour days

Investigator’s Observation: Grind marks and unsightly finish of slab between pours days, along with cuts on joints near end of driveway, respondent will need to 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.

Complaint Item 2: - remedy the zebra like view of the concrete - caused by sealant spray?

Investigator’s Observation: The concrete finish is very thin in areas along with white specs coming from within the concrete to stain the finish, Contractor should make necessary repairs.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 3: - remove numerous boot prints on concrete. Concrete professional walks on newly poured surface. Some caused indentations

Investigator’s Observation: A few foot prints were verified in drive way during inspection, respondent to 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.

Complaint Item 6: - paint curb that Lucero replaced after it was run into by asphalt remover machine

Investigator’s Observation: Curb has not been painted the correct color still remains the color of the driveway, respondent will need to 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.

Complaint Item 7: - “deep clean” as promised. remove left over cement and asphalt along driveway edge

Investigator’s Observation: during inspection verified cement chunks along with asphalt pieces on the edge of the driveway along with pieces of rebar, respondent to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 9: - level gravel installed adjacent to parking as promised by project manager 1

Investigator’s Observation: Gravel was not spread out evenly, respondent to 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.

Complaint Item 11: Numerous dents and gouges on concrete slabs

Investigator’s Observation: There are numerous dents or gouges all the way down the driveway, respondent needs to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 12: Cracking concrete

Investigator’s Observation: There are many cracks throughout the driveway, respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 13: Concrete overspray on river rocks placed feet away from driveway edge

Investigator’s Observation: Verified overspray on river rocks and boulders along the driveway edge, respondent to 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.

Complaint Item 14: Concrete overspray on pipe and wire (on back side) of air conditioner adjacent to garage door

Investigator’s Observation: Verified overspray at back of air conditioner on lines and covers for wires, respondent to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 15: Isolation joints (expansion), 1⁄4” to 1⁄2” thick expansion joint material, at the low masonry perimeter walls.

• The new driveway / masonry perimeter walls are not separated.

Investigator’s Observation: There are no expansion joints at the garage or down the driveway along the curb, Contractor should correct to provide proper expansion joints.

Governing Rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Complaint Item 16: Contraction joints (control joints) –

• 1⁄4 minimum depth of the slab thickness.

• Shallow contraction joints, less than 1 inch, noted.

Investigator’s Observation: there are no control joints along the column walls, Contractor should correct to provide proper control joints.

Complaint Item 17: Contraction joint spacing- Over 10’ in multiple locations.

• Code defers to ACI 318. ACI 318 stipulates- contraction joint spacing to be 2.5 times the slab depth in inches. ▪ A 3.5 inch thick slab = 8.75’ joint spacing. ▪ A 4 inch thick slab = 10’ joint spacing.

• Contraction joint spacing - placement at a change in cross sectional area of the slab.

• ▪ Noting the perimeter masonry wall layout at the concrete driveway interface.

Investigator’s Observation: Multiple slabs measured out more than the 10ft joint spacing, respondent will need to correct by appropriate means.

Complaint Item 18: Well compacted subgrade, tight smooth surface.

• Evidenced by the types of concrete cracking and subsidence.

Investigator’s Observation: corners of rounded slab are cracking near edge, respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Respondent requested another opportunity to speak with Investigator Chester about the complaint items; Investigator Chester told them that the inspections were the opportunity to do so. Investigator Chester told Respondent that if they disagreed about a workmanship issue, they could make that argument at a hearing.

After the Compliance date, Complainant informed Investigator Chester that no work had been performed; therefore, no compliance inspection was performed.

On December 31, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(b); 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 14, 2025.

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

Investigator John Chester testified in support of his findings.

Judith Rounds testified that she was unaware of many defects when she made the final payment. She testified that some of the issues were getting worse with time. She testified that she did not dispute that she stood on the concrete while it was drying. She testified that there was a lot of excess gravel.

Bruce McNeil, a construction consultant, testified that Complainants hired him to review the project. He testified consistently with Investigator Chester’s findings. He testified that many of the slabs have center-line cracking, which is not normal cracking.

Ignatio Malav, who works in concrete construction, testified consistently with Investigator Chester’s findings and Mr. McNeil’s testimony.

Saul Lucero testified that when Complainants made the final payment and accepted the work; therefore, he believed all the Complaint Items should be dismissed on that basis. He testified that the correct time to address issues was at the final walk through. He testified about each of the Complaint Items. Complaint Item 1: he testified it was just aesthetic. Complaint Item 2: he testified that it was efflorescence, that such discoloration happens sometimes, and that the contract says mismatch in color may occur. Complaint Item 3: he testified that the footprints may have been caused by Complainant, who stood on the drying concrete; he argued that Complainant may have caused the footprints and gouges (item eleven). Complaint Item 6: he testified it was not a violation because Ms. Rounds said that she was going to paint the curb; he also testified that Respondent was going to charge Complainant to paint the curb. Complaint Item 7: he testified that Complainant partially corrected the issue, which should be considered modification. Complaint Item 9: he testified that Complainant did not supply enough gravel and that Complainant modified the work by planting new plants, which required moving gravel. Complaint Item 11: he testified that Complainant might have caused the gouges. Complaint Item 12: he testified that cracks happen, and he (and Inspector John Gunn) did not think the expansion joints were the problem. Complaint Items 13 and 14: he reiterated that Complainant accepted the work. Complaint Items 15, 16, and 17: he testified that the City Inspector signed off that the driveway was ready to pour, which means the requirement should be considered a guideline. He also testified that the complaint and investigator’s findings were slightly different. Complaint Item 18: he testified that the subgrade cannot be evaluated by eye, and the appropriate testing was not done. He testified that the reference to “structural concrete” is general language that only applies when the contract is for structural concrete.

Israel Farias testified in support of Respondent.

It was undisputed that Complainant made the final payment.

Whether or not the concrete was structural concrete or was supposed to be structural concrete was not in the Directive. Complainants argued that the concrete was supposed to be structural concrete. Respondent argued that the concrete was not supposed to be structural concrete. The scope of work does not say “structural concrete” or provide a thickness for the slabs, and the only reference to “structural concrete” appears to be in a general disclaimer.

Administrative notice was taken of Respondent’s prior License record on November 3, 2025. According to that record, Respondent’s License No. 339837 had one open complaint, and No. 352998 had no complaints.

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. 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.”

All contractors are subject to licensure complaints for violations of the governing rules and regulations for two years after completion of a project. A contractor cannot use a general waiver contract provision to escape responsibility failure to perform all work in a professional and workmanlike manner as required by the licensee rules and regulations. Only a specific waiver, which demonstrates that a homeowner knows the work is defective in some way and accepts that deficiency, can overcome a licensee’s obligation to perform work in a professional and workmanlike manner.

General acceptance of work does not negate a contractor’s responsibility to perform work in accordance with governing rules and regulations.

Respondent argued that Complainant had an opportunity to identify problems for correction during the final walk through, and Complainant instead made the final payment, accepting the work pursuant to the contract. Respondent argued that by accepting the work, Complainant should be precluded from making workmanship claims. This argument is not compelling in this venue without a specific waiver or other written instrument demonstrating acceptance of specific failures to perform work in a professional or workmanlike manner. Regardless of whether Complainant can seek redress in a civil action, the Registrar may discipline a license in this situation.

If a Directive identifies the problem to be corrected with enough specificity that a Respondent can understand the problem, the Directive does not need to identify a specific code, workmanship guidance, or industry standard to be effective. Licensed contractors are expected to know code provisions related to their work and to understand industry standards, which are not specifically defined and may include fundamental issues like unsightliness. If a contractor is not sure about the code or standard, it can ask the Investigator for additional information about the code or standard at issue.

Respondent argued that the Directive was defective because it did not identify code provisions or industry standards. This argument is not compelling in this case because the Directive explained each Complaint Item with enough specificity that Respondent should have been able to understand and fix it. Complaint Item 1 identified grind marks and an unsightly finish. Complaint Item 2 identified a thin finish and white marking. Complaint Item 3 identified footprints. Complaint Item 6 identified an area that required paint due to damage caused by Respondent. Complaint Item 7 identified cement chunks and asphalt pieces. Complaint Item 9 identified unevenly spread gravel. Complaint Item 11 identified dents and gouges in the concrete. Complaint Item 12 identified cracking. Complaint Item 13 identified overspray along the driveway. Complaint Item 14 identified overspray on air conditioner lines. Complaint Item 15 identified lack of expansion joints. Complaint Item 16 identified lack of control joints. Complaint item 17 identified over-large slabs. Complaint Item 18 identified cracking.

If a Citation includes a code or workmanship standard violation, the code violated must be identified to determine whether a code was violated. Without identifying the rule, a determination cannot be made about whether it was violated.

A Compliance Inspection is not required if no work was performed by Respondent. A Compliance inspection is for the purpose of evaluating compliance with the Directive. As stated in the Directive, Respondent is responsible for reporting compliance with the Directive to the Investigator: “You must notify the Registrar’s assigned Investigator of your compliance with this Directive.” If Respondent does not inform the Investigator that work was performed, and Complainant informs the Investigator that no work was performed, a Compliance Inspection is not required. If Respondent did perform work, Respondent can notify the Investigator, who may perform a pre-hearing inspection; alternatively, Respondent may provide evidence of work performed at a hearing.

The City of Carefree, Arizona, has adopted several building codes, including the 2018 International Building Code and amendments and the 2018 International Residential Code and amendments.

The Code presented for Complaint Items 15 and 16 was 2024 International Residential Code (IRC) BE103.4.2, which stated:

Control joints, isolation joints, construction joints, and any other joints in concrete slabs or between slabs and foundation walls shall be sealed with a caulk or sealant. Gaps and joints shall be cleared of loose material and filled with polyurethane caulk or other elastomeric sealant applied in accordance with the manufacturer's recommendations.

The Code presented for Complaint Item 17 was from the American Concrete Institute (ACI):

ACI 318 does not directly specify maximum control joint spacing but references ACI 360R, which recommends a joint spacing for unreinforced slabs on ground of 24 to 30 times the slab thickness. For a concrete slab of a given thickness, this translates to a maximum spacing like 10 feet (3m) for a 4-inch slab, and the spacing should not exceed 15 feet (4.5m), even for thicker slabs. The required depth for a contraction joint is at least one-third of the slab thickness.

When a county adopts a code for workmanship standards, the Registrar defers to the county’s standards. Approval by an inspector for a county, city, or other political subdivision establishes a presumption of compliance with the applicable workmanship standards for the stage and scope of work that the inspector approved at the time of inspection.

When an adopted code is not contradictory to a Workmanship Standard, they may be read together. The Registrar’s Workmanship Standards require expansion or control joints at carports, garages, curbs, and sidewalks at least one-fifth the thickness of the slab and no more than ten feet apart.

The record does not establish how thick the driveway slab is, making evaluation against the ACI code impossible. Complainant’s Exhibit 7 identified Slab 7 and Slab 29 as being larger than 15 feet in one direction.

The IRC code does not appear to require control or expansion joints, but it regulates how they should be done, if done. This requirement is compatible with the Workmanship Standards; accordingly, they should be considered together.

Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or materially impacted the work or cost required to correct the deficiency. Subsequent work that has a de minimis impact on the issues alleged is not sufficient to establish the affirmative defense.

Complaint Items 15, 16, and 17 were alleged violations of a building code. The preponderance of the evidence did not establish that Respondent departed from or disregarded a building code in violation of A.R.S. § 32-1154(A)(2)(b) for Complaint Items 15 and 16. Specifically, the project passed inspection by a City Inspector, creating a presumption that it was in compliance with the locality’s code. To the extent that Code was identified and provided to the Tribunal against which to evaluate the facts in this matter, it did not clearly state requirements that were not met. The preponderance of the evidence did establish that Respondent departed from or disregarded a building code in violation of A.R.S. § 32-1154(A)(2)(b) for Complaint Item 17 on two slabs.

Complaint Items 1, 2, 3, 6, 7, 9, 11, 12, 13, 14, and 18 were alleged violations of industry standards. 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). Specifically, (1) unsightly finish and poor cuts; (2) thin finish and spotted staining; (6) not repairing damage caused by Respondent by painting; (7) not removing debris; (9) not evening out gravel; (11) not correcting dents and gouges; (12) cracks larger than 3/32 of an inch were present and exceed workmanship standards; (13) overspray; and (14) overspray.

Regarding Complaint Item 3, Respondent met its burden for modification in part; no discipline should be imposed for this item; however, a demonstration that boot prints are clearly larger than Judith Rounds’s is sufficient to demonstrate that the print was not a result of Complainant, and Respondent is responsible.

Regarding Complaint Item 18, it is unclear how cracking at the edges differs from the large cracks addressed in Compliance Item 12. Accordingly, no discipline should be imposed for this item.

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). Respondent failed to even attempt work, relying on “acceptance” by Complainant. This was in error. Licensed contractors have licensing obligations beyond the contract with their customers. Some of those licensing obligations cannot be disclaimed in a contract and others require specific disclaimers.

“The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of subsection A, paragraph 22 of this section.” If a licensee fails to pay the civil penalty, their license is automatically revoked “thirty days after the effective date of the order providing for the civil penalty.” Additionally, any “person who is or was named on a license. . . may not receive a new license under this chapter until the entire civil penalty is paid.”

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for three days Respondent’s License No. 339837.

It is further recommended that the Registrar require Respondent to pay the sum of $400 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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, November 3, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Joey Chester

[email redacted]

Bradley D. Weech

Davis Miles McGuire Gardner

[email redacted]

Randall John Losey

[email redacted]

Lucero Construction Group LLC

[email redacted]

By: OAH Staff