ALJDEC decisions subject to certification as final

09F-1970-ROC · Registrar of Contractors · 2009-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2009 at 1:30 p.m. APPEARANCES: Complainant Green Building Concepts LLC appeared through Steven Gregory Burke, a Member; Respondent Cowboy Inc. dba Cowboy Demo and Clearing appeared through Kenneth Scott Rose, its President and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On November 8, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC226360, Class C-02 for Residential Excavating, Grading and Oil Surfacing to Respondent Cowboy Inc. dba Cowboy Demo and Clearing, a corporation. Kenneth Scott Rose is Respondent’s qualifying party and president. On September 26, 2008, the Registrar issued License No. ROC248455, Class KB- for Dual Residential and Small Commercial Contracting to Complainant Green Building Concepts LLC, a limited liability company. Steven Gregory Burke is a member of Respondent. In the fall of 2008, Complainant had a contract with the City of Superior for some construction work, which included demolition. Respondent indicated an interest in subcontracting to perform the demolition. Part of the project included a residence that had been damaged by fire and was uninhabitable. The City of Superior had threatened to cite the owner of the residence, Mr. Marquez, if it were not repaired or demolished. Complainant submitted a bid to Mr. Marquez to demolish the residence, which was based on the bid that Respondent had provided. Mr. Marquez felt Complainant’s bid was too high. Respondent subsequently met with Mr. Marquez and agreed to demolish the residence and/or clear the lot. On October 6, 2008, the Registrar received Complainant’s complaint against Respondent’s license for contracting beyond the scope of its C-02 license for Residential Excavating, Grading and Oil Surfacing. On November 3, 2008, Mr. Burke on behalf of Complainant requested that the complaint be reopened and requested that a citation be issued against Respondent’s license. The Registrar’s Inspections Department referred the matter to its Legal Department. On November 17, 2008, the Registrar’s Inspector Jack Clark sent a letter to Respondent, informing it as follows: Our records indicate you have a current class C-02 Excavating and Grading license. However, we have information indicating you are performing or offering to perform work which would be covered under the scope of a class C-22R Wrecking license regarding Demolition of house at 341 Terrace, Superior, Arizona.

Arizona Revised Statutes, Section §32-1154, sets forth numerous grounds for suspension or revocation of a license. A.R.S. §32- 1154.A.17 reads:

“Knowingly contracting beyond the scope of the license or licenses of the licensee.”

Under these circumstances, the agency can seek disciplinary action against your license. You should review our most recent statutes and rules book to familiarize yourself with the scope of your license(s).

Please give this matter your immediate attention. . . . A copy of the letter was not sent to Complainant. On March 26, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, which charged A.R.S. § 32-1154(A)(7), (15), (17), and (3) (namely A.A.C. R4-9-108). Respondent timely filed a written answer to the Citation and Complaint, which denied any statutory violation because “[i]t is not illegal or unreasonable to do debris and trash cleanup as part of lot excavating, grading and leveling. . . . However, to avoid any confusion in the future, Cowboy Inc. has applied for a C22R Wrecking License . . . .” The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on August 24, 2009. Complainant submitted at the hearing a picture of the residence, which showed a small house with block walls and casement windows. The roof had substantial fire damage but, otherwise, the house appeared to be intact. Respondent’s qualifying party Mr. Rose testified that Mr. Marquez had obtained a demolition permit and knocked the house down. Mr. Rose testified that all Respondent had done was break up the concrete slab and remove the debris from the property. Complainant’s member Mr. Burke stated that he only wanted the Registrar to provide information on the scope of a C-02 license. He was surprised that he had to go to hearing to obtain this information. Mr. Burke denied that Complainant had been injured as a result of Respondent’s contracting law violation or that Respondent had failed to perform any contracting work in a professional and workmanlike manner. Mr. Rose submitted a printout of the Registrar’s website that showed that, on May 7, 2009, the Registrar had issued License No. ROC254660, Class C-22R for Residential Wrecking to Respondent. The Registrar’s records reveal that, if the Registrar accepts this recommended decision, it will be the only final order against Respondent on the current record. Respondent’s record therefore is considered as a factor in mitigation of the recommended penalty. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] The Registrar has promulgated A.A.C. R4-9-103, which sets forth the scope of a C-2 license for Excavating, grading & Oil Surfacing as follows: Installation, alteration, and repair of earthen material by digging, trenching, grading, or compacting the material for a cut, fill, grade, or trench. Oil surfacing may be applied over base materials.

A.A.C. R4-9-103 also provides that the scope of a C-22R license is for residential wrecking. A.A.C. R4-9-102(B) provides the scope of an L-57 license for wrecking, as follows: Demolition, dismantling, and removal of structures not intended for reuse, the erection of temporary ramps, barricades, and pedestrian walkways when required for a wrecking project.

The use of explosives is excluded.

The scope of a C-2 Excavating, Grading & Oil Surfacing license does not include breaking up and removing concrete slabs or masonry structures. Because Respondent’s qualifying party admitted that, at a minimum, it broke up and removed a concrete slab, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(17) in removing at least a part of the house in Superior. Complainant has not alleged or established that Respondent violated any other contracting law, including the other statutory subsections charged in the Citation and Complaint, A.R.S. § 32-1154(A)(7),[5] (15),[6] and (3).[7] With respect to the appropriate discipline for Respondent’s proven violation, Respondent has cured the violation by obtaining the appropriate license. Although the violation should remain on Respondent’s record, no further discipline is appropriate. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s order, the Registrar close as resolved Case No. 09-1970 against Respondent Cowboy Inc. dba Cowboy Demo and Clearing’s License No. ROC226360, Class C-02. Done this day, August 26, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of August, 2009, to: William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By _______________________ ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826