ALJDEC - Licensing

2024A-10773-CHC-ROC · Registrar of Contractors · 2025-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronald Edwin Pitt,

COMPLAINANT

v.

Daniel Joseph Oconnor

DBA: DOC Welding and Fab,

License No. ROC 339199,

RESPONDENT

No. 2024A-10773-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2025

APPEARANCES: Complainant Ronald Edwin Pitt appeared telephonically on his own behalf. Registrar of Contractors Investigator Cliff Corlett appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-11 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

The Daniel Joseph Oconnor (Respondent) is the holder of License No. 339199 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 8, 2024, Complainant hired Respondent to install a block wall and a perimeter iron fence with two gates at his home in Lake Havasu, Arizona.

On or about September 21, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Cliff Corlett. The jobsite inspection was performed on October 28, 2024.

Investigator Corlett then issued a Written Directive on or about November 14, 2024, which provided in pertinent 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 or before December 6, 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 reasons, 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:

Complaint Item: 1 - Rough grading not complete.

Investigator’s Observation: Final grade should be established to direct water away from structurer(s). Respondent should return all property to a minimum of a rough grade.

Respondent and Complainant have entered into a construction contract for

the construction of retaining walls and fencing. Both parties should fulfill their obligations under the terms of the contract and any modifications of that contract.

**NOTE** Respondent’s license does not permit contracting of excavation or grading or construction of masonry walls. Nor does it allow the Respondent to perform the functions of a General Contractor or hire any sub-contractors outside of his CR-17 license scope.

Governing Rule: Knowingly contracting beyond the scope of the license or licenses of the licensee.

A.R.S. § 32-1154(A)(16)

Complaint Item: 2 - Wall perimeter fencing not completed although some fencing was delivered. Perimeter fencing arrived, wrong color and wrong height. None of the fencing installed.

Investigator’s Observation:

This is a work in progress. No fencing or gates had been installed as of the date of the ROC inspection. Parties are in a major disagreement as to fencing height and color. The only specification in regards to the wrought iron fencing height is a notation on the "Approved" drawing that says "handrail" and the next word is un-readable. There is no documentations as to the color of the fencing. (Fencing delivered is 36-inch and black and Complainant states fencing should be 5-ft and a brown color.

There is insufficient information for the ROC to make any determination as to the color and height of the fencing.

Respondent and Complainant have entered into a construction contract for the construction of retaining walls and fencing. Both parties should fulfill their obligations under the terms of the contract and any modifications of that contract.

If the parties cannot resolve these issues between themselves, they may need to seek relief in another legal forum.

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 - Roadside easement is not graded properly.

Grading roadside perimeter, not complete.

Investigator’s Observation: This project is a work in progress. One of the steps that must happen is a final inspection by Lake Havasu City. That inspection will require the roadside of the new walls to be properly graded. RESPONDENT SHOULD GET AND PASS ANY / ALL LAKE HAVASU BUILDING DEPARTMENT AND ENGINEERING INSPECTIONS.

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 - Weepage rock w for wall specs were not installed. Inside of wall was back filled before final inspection of the wall.

Investigator’s Observation: Wall was backfilled at the time of the ROC onsite inspection. Weepage rock could not be verified.

Project must pass final inspection by Lake Havasu.

RESPONDENT SHOULD GET AND PASS ALL REQUIRED CITY BUILDING INSPECTIONS.

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...

(All errors contained in the original).

While Investigator Corlett did not conduct a Compliance Jobsite Inspection, on December 20, 2024, he sent the following correspondence to the parties, which read in pertinent part:

Compliance Jobsite General Notes: Respondent contracted to construct perimeter yard retaining walls with pool code wrought iron fencing and gates atop. Walls required considerable backfill and proper drainage. R sub-contracted with masonry contractor to build walls and grades.

Respondent is not licensed to do work performed and not a licensed generalcontractor. There is insufficient information to support C’s allegatrion that the wrough iron fence was to be a certain height and a certain color. Masonry walls still need to pass a final city building inspection, grade on exterior of walls still needs to pass city engineering inspection.

Compliance Findings: RESPONDENT NOT IN COMPLIANCE. . .

(All errors contained in the original).

On December 31, 2024, 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(c); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about January 9, 2025, Respondent submitted an Answer to the Registrar.

On or about January 16, 2025, a Notice of Hearing was issued setting a hearing on February 12, 2025, at the Office of Administrative Hearings, an independent state agency. A copy of the Notice of Hearing was mailed and e-mailed to Respondent’s addresses of record. Further, on January 18, 2025, the tribunal e-mailed the Google Meet information to Respondent.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Investigator Corlett testified as to the Registrar’s involvement and the above timeline and findings.

Investigator Corlett also testified that Respondent had a CR-17 license which did not allow him to act as a general contractor, and therefore could not hire other contractors which were out of his license scope. Investigator Corlett testified that he sent a Warning Letter to Respondent regarding the same.

Further, Investigator Corlett testified that the parties’ contract did not comply with Arizona law as it did not contain the information which informed Complainant of his right to file a complaint with the Registrar. Investigator Corlett testified that he sent Respondent a Warning Letter regarding the same.

In addition, Investigator Corlett testified that the project had to conform with city guidelines and that the wall needed to be inspected by Lake Havasu City, which was not completed.

Investigator Corlett also testified that on December 7, 2024, Complainant sent an email informing him that no corrective work had been performed.

Finally, Investigator Corlett testified as to Respondent’s January 9, 2025 response, wherein Respondent admitted to some of the allegations. Investigator Corlett testified however that Respondent did not have the authority to hire “mi familia”, the block contractor (who appeared to be unlicensed), who then hired BC Balmellli Trucking and Excavation (who also appeared to be unlicensed).

Complainant testified that contrary to Respondent’s answer, he did not hire Balmelli, and that Respondent set up everything. Further, Complainant testified that he never prevented Respondent from working and even granted him 10 extra days to finish the project.

Complainant testified that Respondent was still approximately 50-60 feet short on the fencing, and that he paid an extra $5,000.00 over the contract price for the extra dirt that was needed.

Administrative notice was taken of Respondent’s prior License record on February 27, 2025. Such prior License record reflected that Respondent’s License No. 339199 was first issued on July 6, 2022, and reflected that there were two open cases, one of which was the present case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano 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 preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as Respondent did not have the correct materials nor license to perform the work in a workmanlike manner.

The preponderance of the evidence established that the contract was in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, as it did not contain the “right to file language”.

The preponderance of the evidence established that Respondent knowingly performed and hired people as subcontractors which was beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

Finally, the preponderance of the evidence established Respondent failed to complete any of the corrective work following the Directive being issued, or reach a satisfactory settlement with Complainant. 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 No. 339199 for a period of five 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 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.

It is further recommended that Respondent be ordered to provide the Registrar with a sample contract which complies with A.R.S. § 32-1158. It is recommended that Respondent’s license remain suspended until he complies with the same.

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, February 27, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Daniel Joseph Oconnor

DOC Welding and Fab

[email redacted]

Ronald Edwin Pitt

[email redacted]

By: OAH Staff