ALJDEC decisions subject to certification as final

2013A-4228-ROC · Registrar of Contractors · 2014-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Seth Hargraves. Monreal’s Construction LLC (hereinafter “Respondent” or “Monreal”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background Monreal is the holder of License No. C-9.215881-R issued by the Registrar.

Monreal is also the holder of License L-9.243935-C issued by the Registrar. On or about April 8, 2013, Christopher Lockyer-Bratton (hereinafter “Mr. Lockyer-Bratton”) filed a complaint with the Registrar alleging poor work by Monreal in its performance of its November 22, 2011 construction contract to install pavers, install a barbeque, and construct a block wall at Mr. Lockyer-Bratton’s residence located at 17519 E. Orchid Ln., Gilbert, Arizona for $8,850.00.[1] On or about April 22, 2013, the Registrar conducted a jobsite inspection of the construction project at Mr. Lockyer-Bratton’s residence and subsequently issued a Corrective Work Order directing Monreal to remedy its deficient workmanship on the construction project. The Corrective Work Order provided, in pertinent part, as follows: Complaint #1- Improper base layer causing lifting, loose and displaced pavers.

Verified that throughout the installation of the rear patio pavers; pavers are uneven, loose and have broken free and [popped] up from the sub-surface.

The Respondent is to correct by appropriate means.

Complaint #2- Improper grading causing water backup and retention.

Verified that the Respondent did not properly grade sub-surface in front of the built in place barbeque unit. Water is ponding. Respondent did not allow access for the water to drain around the barbeque unit and off the new paver deck.

The Respondent is to correct by appropriate means.

On the following complaint [item] corrections[,] the Respondent is out of scope of [its] C-9 (concrete) license. These corrections require a B-3 (General Remodeling and Repair Contractor) for entire project corrections or a C-31 (masonry) for masonry block wall corrections. The Respondent is required to sub-contract the [correction] items to properly licensed ROC contractors that [have licenses that] are current and in good standing.

They are as follows:

Complaint #3- Improper and inadequate footings causing new walls for [built-in-place] barbeque unit to crack and separate.

Not able to verify or determine the size of the footings installed by the Respondent; no building plans to review and no specifications listed in the contract.

Note: Footings are within the scope of Respondent[’s] C-9 (concrete) license.

Complaint #4- Improper and inadequate reinforcement in block walls causing separation of walls and surfaces. Verified that both corners of the block wall installed by the Respondent have separated.

Both corners have cracks ranging from ¼” to 1” from footing to top of wall and [are] approx. ½” out of plumb.

The Respondent is to correct by appropriate means.

Complaint #5- Improper and inadequate bonding ties in wall components causing major cracks and separation. Verified that both corners of the block wall installed by the Respondent have separated.

Both corners have cracks ranging from ¼” to 1” from footing to top of wall and [are] approx. ½” out of plumb.

The Respondent is to correct by appropriate means.

Complaint #6- Possible code violations with regard to drip edge height.

Complainant is referring to the exterior stucco weep screed. The Respondent installed the new patio pavers system up tight in some places under the weep screed. The 2009 IRC Building Code (IRC R703.6.2.1) states that there is to be a minimum of 2 inches from the weep screed and a solid surface; such as pavers. The ROC does not enforce the building codes only the authorized building officials do so. However, the ROC can bring a code violation to everyone’s [attention]. The Respondent is to contact the authorized building department officials and verify if the building code violation will be [enforced] or not by appropriate means.

Complaint #7- Other faults not visible but causing structural deficiencies.

Not able to determine what or any other faults [that] could be an issue.

Testimony of Registrar Inspector/Investigator Randy Cason Inspector Cason stated that the Corrective Work Order was issued on April 29, 2013. Inspector Cason testified that the Registrar received correspondence from the homeowner on or about May 29, 2013, indicating that Monreal had failed to comply with the Corrective Work Order. Inspector Cason testified that Monreal performed construction work beyond the scope of Monreal’s License No. C-9.215881-R by constructing a block wall at Mr. Lockyer-Bratton’s residence.[2] Inspector Cason testified that the footing for the new block wall was improper and inadequate. Inspector Cason stated that the block wall had been constructed with inadequate reinforcement in the blocks and inadequate bonding ties. Inspector Cason testified that the masonry block wall constructed by Monreal was out of plumb and that the wall had gaps in excess of one-fourth inch. Inspector Cason stated that Monreal had violated applicable code requirements by installing the new patio pavers system up-tight to the weep screed and in some instances under the weep screed for Mr. Lockyer-Bratton’s residence. Inspector Cason testified that the construction performed by Monreal at Mr. Lockyer-Bratton’s residence failed to comply with applicable workmanship and industry standards. Inspector Cason testified that he performed a prehearing inspection at Mr. Lockyer-Bratton’s residence on February 20, 2014. Inspector Cason stated that he went over the items set forth in the Corrective Work Order. Inspector Cason testified that Monreal failed to comply with the terms of the Corrective Work Order. Inspector Cason testified that the invoices prepared by Monreal and utilized as the parties’ construction agreements did not contain the minimum elements of a contract.[3] Inspector Cason stated that the invoices did not contain the estimated date of completion of all work to be performed under the contract, did not inform the homeowner that he had a right to file a complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A), did not contain the Registrar’s telephone number and website address, and did not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155(A). Inspector Cason testified that the invoices provided by Monreal and utilized as the parties’ construction contracts did not contain Monreal’s license number preceded by the acronym "ROC.” Inspector Cason’s testimony is found to be credible. Testimony of Jose Gill Jose Gill (hereinafter “Mr. Gill”) testified that he is a staff attorney in the Legal Department for the Registrar of Contractors. Mr. Gill stated that he was familiar with Monreal’s license status with the Registrar. Mr. Gill testified that License No. C-9.215881-R of Monreal was revoked on or about February 7, 2014, for Monreal’s failure to pay a civil penalty. Mr. Gill stated that License L-9.243935-C of Monreal expired in 2011. Mr. Gill’s testimony is found to be credible. Administrative notice is taken of Monreal’s prior license records as reflected on the Registrar’s public website on February 28, 2014. Such prior license records reflect that License L-9.243935-C of Monreal expired on April 1, 2011 and that License No. C-9.215881-R of Monreal was revoked on February 7, 2014, for failure to pay a civil penalty. License No. C- 9.215881-R of Monreal was placed on probation from February 7, 2014, through August 5, 2014. License No. C-9.215881-R of Monreal had previously been placed on probation from February 5, 2007, through June 5, 2007. License No. C-9.215881-R of Monreal had been placed on finite suspension from January 8, 2014, through February 6, 2014. License No. C- 9.215881-R of Monreal had been suspended for non-renewal on February 1, 2014, and from February 1, 2010, through December 22, 2010. License No. C- 9.215881-R of Monreal had been suspended from March 8, 2008, through May 22, 2008, April 18, 2009, through May 26, 2009, and from August 4, 2009, through September 10, 2009 for lack of bond. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 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 block wall at Mr. Lockyer-Bratton’s residence was constructed by Monreal with inadequate reinforcement in the blocks and inadequate bonding ties. The masonry block wall constructed by Monreal is out of plumb and has gaps in excess of one-fourth inch. Monreal violated applicable code requirements by installing the new patio pavers system up-tight to the weep screed and in some instances under the weep screed. This Tribunal concludes that Monreal violated the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108. The invoices provided by Monreal and utilized as the parties’ construction contracts did not contain Monreal’s license number preceded by the acronym "ROC.” This Tribunal concludes that Monreal violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B). The invoices prepared by Monreal and utilized as the parties’ construction contracts do not contain the estimated date of completion of all work to be performed under the contract, do not inform the homeowner that he has a right to file a complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A), do not contain the Registrar’s telephone number and website address, and do not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155(A). This Tribunal concludes that Monreal violated the charged provision of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1158(B). Monreal performed construction work beyond the scope of Monreal’s License No. C-9.215881-R by constructing a block wall and a barbeque at Mr. Lockyer- Bratton’s residence. This Tribunal concludes that Monreal violated the charged provision of A.R.S. § 32-1154(A)(17). Inspector Cason performed a prehearing inspection at Mr. Lockyer-Bratton’s residence on February 20, 2014. Inspector Cason reviewed each of the items set forth in the Corrective Work Order. Monreal failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that Monreal violated the charged provision of A.R.S. § 32-1154(A)(23). A.R.S. § 32-1154(A)(21) provides grounds for suspension or revocation of a contractor’s license as follows: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.

RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 9.215881-R of Monreal and License L-9.243935-C of Monreal shall be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Monreal pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Monreal to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Monreal, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification Done this day, March 6, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. 3 (Complaint with attachments). [2] A.A.C. R4-9-103 provides that the scope of a C-9 concrete license includes the following:

Installation and repair of concrete, concrete products, and accessories common to the industry. This scope includes all C-9R subclassifications.

C-9R Gunite and Shotcrete C-9R Lightweight Concrete C-9R Fence Footings C-9R Pre-Cast Concrete C-9R Sawing, Coring, Epoxy Panels and Bonding C-9R Terrazzo

[3] See Exhibit No. 5 (Notice of Minimum Elements of a Contract with attached invoices).

-----------------------

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