ALJDEC - Licensing

2024A-11005-CHC-ROC · Registrar of Contractors · 2025-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard L Basinger Esq.,

COMPLAINANT,

Swift Concrete LLC

License No. ROC 343282,

RESPONDENT.

No. 2024A-11005-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 26, 2025.

APPEARANCES:

For Complainant: Richard Basinger.

For Respondent: Anthony Gonzales.

For the Registrar of Contractors: Cliff Corlett.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1 through 66.

_____________________________________________________________________

FINDINGS OF FACT

Swift Concrete LLC (Respondent) was the holder of License No. 343282 issued by the Arizona Registrar of Contractors (Registrar) on February 17, 2023.

On or about August 28, 2023, Richard Basinger (Complainant) entered into a contract with Respondent for, among other things, to overlay concrete.

On or about September 25, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.

The Registrar assigned the complaint to Investigator Cliff Corlett, who issued a Jobsite Inspection Notice on October 18, 2024, scheduling the inspection for October 31, 2024.

Investigator Corlett conducted the jobsite inspection on October 31, 2024, and Respondent was not present. Following the inspection, Investigator Corlett issued a Written Directive From the Registrar to Respondent on November 13, 2024, that provided as follows:

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

Complaint Item: 1 - Contractor abandoned project after

agreement to repair defects.

Investigator’s Observation: Respondents work is cracking, buckling and non-uniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS.

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 - Did not complete work as discussed or as written In the Contract/Invoice #0011. (copy attached)

Investigator’s Observation: Respondents work is cracking, buckling and non-uniform in color. Existing concrete crack repair of poor quality. NOTE - Concrete cracks. Any crack repair will have some degree of visibility

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS ALL CONCRETE COATING DEFICIENCIES.

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: 3 - Misrepresented that the result would be "perfect". Result was imperfections and color variations.

Investigator’s Observation: The Registrar does not enforce a "Perfection" standard, merrily that work should conform to acceptable industry standards. In this case the Respondents work is cracking, buckling and nonuniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS.

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 - After Contractor acknowledged the work was defective, came intermittently to correct the defects and created more issues.

Investigator’s Observation: Respondents work is cracking, buckling and non-uniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS.

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 - The project was not completed and at this time specifically the driveway is ground down to the original concrete and remains worse than prior to the work being done.

Investigator’s Observation:

Respondents work is cracking, buckling and non-uniform in color. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

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 - Water still pools in areas that were to be fixed, that had been and remain ground down and thus more damage is occurring to the surface (and original cement in areas).

Investigator’s Observation:

The Workmanship Standards for Licensed Contractors (WSLC) states that driveways, sidewalks and exterior decks should drain, however minor ponding not to exceed 3/32-inches, 30-minutes after flooding the area is acceptable. RESPONDENT SHOULD PROPERLY CORRECT ANY AREAS THAT DO NOT MEET THESE STANDARDS.

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 - Cracks in the cement were not correctly fixed and the cement coating that was applied bubbled, cracked and peeled exposing the cracks.

Investigator’s Observation: Respondents work is cracking, buckling and non-uniform in color. crack repair will have some degree of visibility

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS ALL CONCRETE COATING DEFICIENCIES.

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: 8 - After Contractor acknowledged there were issues, and making a halfhearted attempt to repair their mistakes by grinding down areas to the original cement, Contractor left the project refusing to fix problem and leaving the ground down cement areas exposed.

Investigator’s Observation:

Respondents work is cracking, buckling and non-uniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY

APPROPRIATE METHODS.

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: 9 - At one point Contractor requested additional amounts to repair defects they had caused.

Investigator’s Observation: A.R.S. 32-1154-A, 8 States: "Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract." Is grounds for suspension or revocation of license.

RESPONDENT SHOULD COMPLETE THIS PROJECT AT CONTRACTED PRICE.

Governing Rule: Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in

any modification of the contract.

A.R.S. § 32-1154(A)(8)

Complaint Item: 10 - Contractor did not perform as was contracted for including concrete not being leveled and uniformly overlaid.

Investigator’s Observation:

RESPONDENT SHOULD PROPERLY CORRECT ANY AREAS THAT DO NOT MEET THESE STANDARDS.

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: 11 - Incomplete, defective work, leaving project in disrepair and unfinished.

Investigator’s Observation: Respondents work is cracking, buckling and non-uniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

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: 12 - Contractor repeatedly said, "Project work would be perfect" and it is not.

Investigator’s Observation: The Registrar does not enforce a "Perfect" standard merrily that work should conform to acceptable industry standards. In this case the Respondents work is cracking, buckling and non-uniform in color.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

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.

The Written Directive required Respondent to notify Investigator Corlett of Respondent’s compliance with the directive prior to 5:00 p.m. on December 6, 2024.

On December 11, 2024, Complainant informed Investigator Corlett that no corrective work had been performed on the project.

On December 17, 2024, 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 December 28, 2024, stating he completed the contract. It stated that Complainant agreed to the finish and that the color variations were due to moisture in the ground; if Complainant wanted a uniform color, he would need to put another layer on top, which was not in the original contract. He posited that Complainants made an agreement with Mr. Gonzales’s father to do that work, and he did not believe he was the contractor for that work. He provided a copy of a proposed change order that would have covered the additional work if Complainant wanted Respondent to do it.

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

On January 24, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for February 26, 2025, at 1:00 PM.

The hearing was held via Google Meet on February 26, 2025.

Investigator Corlett testified in support of his investigation and findings.

Jack Gordon, an engineer at Gervasio & Associates, Inc., wrote a report for Complainant about Respondent’s work. He testified that their findings were consistent with Investigator Corlett’s findings.

Complainant testified that after raising the poor workmanship issues with Respondent, Respondent proposed to add another layer on top of the overlay. Over several communications, they discussed the repairs to the defective work. Eventually, Mr. Gonzales disclaimed responsibility for the corrective work. He provided a proposed change order, asking for additional funds to be responsible for the top layer.

Complainant testified that he did not cut a side-deal with Mr. Gonzales’s father. Mr. Gonzales’s father worked for Respondent throughout the original project, and Complainant believed Respondent was fixing its defective work. Complainant testified that Respondent acted as the contractor for the top layer.

Respondent testified that he finished the original contract. Then, Complainant made a side deal with Mr. Gonzales’s father, using Respondent as a middle-man. Respondent got tired of being the middle-man on that deal, so he told Complainant that if they wanted Respondent to do the work it would cost more, and he sent a proposed change order. He later told them that he would do the coating if they bought the product, but otherwise, he was done with them. He testified that the top coat had nothing to do with him.

Administrative notice was taken of Respondent’s prior License record on March 17, 2025. According to that record, Respondent’s License No. 343282 was suspended for non-renewal. There was only one complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Respondent’s suspended license does 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.”

A contractor accepts the surface upon which they work. Prior to performing work, a contractor should inspect the surface for flaws or defects that would affect the work to be performed; if the surface is unacceptable, the contractor should call the defect to the owner’s attention so that the owner can choose to pay for corrective work or for the contractor to request a warranty disclaimer.

Respondent knew or should have known that the concrete was wet in certain areas, which he claimed could have caused differences in the color or curing times, and should have addressed that potential issue prior to beginning work.

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 impact 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.

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 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).

The preponderance of the evidence does not support that Complainant made a side deal with Mr. Gonzales’s father. Respondent argued that the top coat was a deal that Complainant made with Mr. Gonzales’s father, and Respondent was not responsible for it. However, the preponderance of the evidence supports that Respondent’s original work was defective, and in working to resolve that issue, Respondent made a deal to fix it by applying a top layer. Based upon the testimony and documents on record, the preponderance of the evidence supports that Respondent was the contractor for the top coat and other work on the deficiencies. Accordingly, the preponderance of the evidence does not support a modification defense.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for five days Respondent’s License No. 343282.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, March 18, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Swift Concrete LLC

[email redacted]

Richard Basinger

Basinger Legal Services, PLC

[email redacted]

Cliff Corlett

Registrar of Contractors

[email redacted]

By: OAH Staff