ALJDEC - Licensing

2025A-00545-CHC-ROC · Registrar of Contractors · 2025-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard LeGrand III,

COMPLAINANT,

v.

Arcadia Fence & Gate Company

License No. ROC 337481,

RESPONDENT.

No. 2025A-00545-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 9, 2025 at 1:00pm

APPEARANCES: Complainant Richard LeGrand III on his own behalf; Joe Pagano on behalf of Respondent Arcadia Fence & Gate Company; Investigator Mark Nipp on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors Notice of Hearing Packet (“Packet”).

_____________________________________________________________________

FINDINGS OF FACT

Arcadia Fence & Gate Company (“Respondent”) is the holder of License No. ROC 337481 issued by the Arizona Registrar of Contractors (“Registrar”). Respondent holds a CR14 Fencing license, which does not allow the licensee to install or repair retaining walls.

On or about March 23, 2023, Richard LeGrand III (“Complainant”) entered into a contract with Respondent for, among other things, to move and extend a recreational vehicle (“RV”) gate and modify an existing block wall. Complainant’s homeowner’s association warned him that his air conditioning units on the east side of his property could not be in plain view, as Complainant’s property abutted a neighborhood walkway. Complainant contracted with Respondent to add four feet of block wall to the existing retaining wall. The project was located at Complainant’s residential home in Scottsdale, Arizona.

On or about January 16, 2025, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mark Nipp. On February 11, 2025, a jobsite inspection took place with both parties present. On February 11, 2025, Investigator Nipp issued a Written Directive to Respondent that provided 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 Monday, March 3, 2025.

. . . .

DIRECTIVE REQUIREMENTS

The complaint items annotated as “Verified” require corrective work. You are directed to remedy the following violations by the appropriate means.

1 Verified Complaint Item:

Had concerns during construction, but was assured it wouldn’t be an issue. Plants have been removed and significant cracking and movement of the wall was observed. The wall was built on existing pony wall and now it is not structurally sound and cracking.

Investigator’s Initial Observations:

This complaint is related to complaint #2024-07435; however, the allegations contained in the previous complaint were different than the new complaint. The Respondent corrected the allegations from the previous complaint (2024-07435).

Both parties agreed the Respondent built the new wall on top of the existing retaining wall.

Both parties agreed that there was no signed explicit waver for building on top of the pre-existing retaining wall.

The Complainant showed me three areas where the pre-existing retaining wall was cracking and where those cracks were transmitting upward into the CMU block.

I saw three areas where the retaining was cracked. I also saw that one of the three retaining wall cracks had transmitted upward into the CMU block installed by the Respondent. I saw that this third area had stair-step cracks that exceeded 1/8 inch. There was a void in the mortar joint that exceed 1⁄4 inch. I also noted that the cracks had extended into the CMU block. I noted that the cracks were visible on both sides of the wall.

ROC Workmanship Standards for Licensed Contractors (March

2024) states, Voids in mortar joints that exceed 11/4 inch are not acceptable. Stair step cracks that exceed 1/8 inch and/or extend into the CMU block are not acceptable.

Required Actions:

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s):

1-15

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the Written Directive, Respondent was formulating a plan but did not get the plan up and running. After the deadline in the directive expired, Investigator Nipp was notified that no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Hearing Evidence

Investigator Nipp testified that Respondent built onto the existing, older wall to extend the height. Investigator Nipp further testified that the parties did not sign an explicit waiver for building on top of the existing retaining wall, three areas began to crack in the retaining wall, and those cracks transmitted upwards into the cinder block. Investigator Nipp stated that, without the waiver, Respondent “essentially accepts that surface.”

Complainant testified that the cracks in the retaining wall were the beginning stages of deterioration and that the wall would fail more as time went on and potentially collapse.

Joe Pagano, qualifying party for Respondent, testified that he wished they had presented Complainant with a waiver because they built on existing wall that they did not build. In addition, Mr. Pagano testified that he misread the Written Directive.

Administrative notice is taken of Respondent’s prior License record on May 9, 2025. Such prior License record reflects that Respondent’s License No. ROC 337481 was first issued on April 6, 2022, and is Active.

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. A preponderance of the evidence means “[p]roof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

In this case, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

Furthermore, the evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. ROC 337481 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, May 29, 2025.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Richard LeGrand III

[email redacted]

Arcadia Fence & Gate Company

[email redacted]

Mark Nipp

[email redacted]

By: OAH Staff