ALJDEC decisions subject to certification as final

2017A-2773-CHC-ROC · Registrar of Contractors · 2017-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Raquel Cintron,

COMPLAINANT,

v.

Masonry and More LLC,

License Nos. CR31.199192-D, CR-9.254436-D, CR31.246231-D, and CR36.309000-D,

RESPONDENT.

No. 2017A-2773-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 17, 2017, at 1:00 p.m.

APPEARANCES: Raquel Cintron (“Complainant”) appeared on her own behalf; Masonry and More LLC (“Respondent”) appeared through Jeffrey Adam Gilbert, its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

Between August 29, 2004, and October 18, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. CR31.199192-D (dual masonry), CR-9.254436-D (dual concrete), CR31.246231-D (dual masonry), and CR36.309000-D (dual plastering) to Respondent.

On or about May 26, 2017, Complainant filed a complaint with the Registrar against Respondent alleging that it had started installing a retaining wall at a house that she owned at 2600 Inverness Dr., Lake Havasu City, Arizona 86404, even though she had not hired Respondent or accepted its bid for the work. Complainant stated that she did not pay Respondent any of the $8,228.00 contract amount.

The Registrar assigned the complaint to its Investigator, Clifford Corlett, for investigation. Investigator Corlett performed a jobsite inspection and on July 10, 2017, issued a directive to Respondent to perform certain work at Complainant’s property on Inverness Dr. on or before 5:00 p.m. on July 28, 2017, in relevant part as follows:

Respondent has not been able to produce documentation of any kind (signed contract, letter, e-mail, text, etc.) that the Complainant authorized the retaining wall project on her property. RESPONDENT SHOULD RESTORE COMPLAINANT[’]S PROPERTY TO ITS PRE-EXCAVATION CONDITION, RESTORING THE PROPERTY LINE SLOPES AND RESTORING ALL OF COMPLAINANT[’]S ROCK LANDSCAPE, GROUND COVER.

After Complainant informed Investigator Corlett that nothing had changed and Respondent had not negotiated a satisfactory resolution to her complaint, he referred the complaint to the Registrar’s Legal Department. On August 8, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/member, Mr. Gilbert, filed a timely written answer to the Citation, stating Respondent’s license should not be suspended because Complainant had verbally informed Respondent’s salesperson, Mike Rodgers, that she accepted its bid to construct a 3’ high retaining wall but that after Respondent’s crew started the work, Complainant’s sister ordered them to leave the jobsite.

Respondent attached an excerpt from the International Residential Code § R105.2, which provided that a permit was not required for “[r]etaining walls that are not over 4 feet (1219mm) in height measured from the bottom of the footing to the top of the wall, unless supporting a surcharge.”

An evidentiary hearing was held via videoconference from the Registrar’s Flagstaff office on October 17, 2017. Complainant testified, submitted two exhibits, and was prepared to present the testimony of her sisters Roxana Orellane and Vanessa Vilches. Mr. Gilbert testified on Respondent’s behalf, submitted two exhibits, and presented Mr. Rodgers’ testimony. Investigator Corlett testified telephonically.

Hearing Evidence

Investigator Corlett testified that Respondent did not attend the June 26, 2017 initial jobsite inspection because it did not receive notice of the inspection in time. At that time, Complainant provided Respondent’s proposal dated February 17, 2017, to build the retaining wall, which Complainant stated that she did not authorize.

Inspector Corlett testified that on June 26, 2017, there was no wall started on Complainant’s property; only the slope of the yard had been cut. Because Respondent could not provide any written approval from Complainant, the only solution was to require Respondent to restore the property to its pre-excavation state, including the slope and landscaping.

Mr. Rodgers testified that Complainant had verbally accepted Respondent’s bid to build a 3’ retaining wall in a telephone conversation. Mr. Rodgers stated that he frequently receives verbal authorization over the telephone for Respondent to begin projects because many of Respondent’s customers are seasonal residents who otherwise live out of town. Mr. Rodgers and Mr. Gilbert testified that Respondent’s crews never enter a property without the owner’s permission.

Complainant submitted a letter dated October 5, 2017, from Peterson Geotechnical Group, LLC, purported “specialists in forensic geotechnical engineering,” that stated that, “[f]rom a civil engineering standpoint, it is our opinion that the retaining wall needs to be designed by a structural engineer to account for the sloping ground surface, which exists behind the wall.”

Investigator Corlett testified that in his 22 years’ experience as an investigator for the Registrar in the Lake Havasu area, engineering is not required for a retaining wall that is less than 10’ high or that has excessive surcharges.

Investigator Corlett explained that a surcharge refers to the weight of the material that the retaining wall is supporting. Investigator Corlett testified that in his experience, engineering was not required for the 3’ high retaining wall that Respondent had proposed to build, given the slope of Complainant’s lot.

Investigator Corlett testified that given the surcharge, a permit would have been required if the retaining wall had been built. Since the retaining wall was not built, however, no permit was required.

Complainant acknowledged that she had filled in the footings that Respondent’s crew had dug for the wall before it was ordered off Complainant’s property. Complainant explained that she wanted to eliminate the danger of an open trench. Complainant acknowledged that she did compact the fill that she placed in the footings.

Complainant submitted emails dated early April 2017, between herself and Mr. Rodgers about Respondent’s proposals for the wall. The emails did not evidence Complainant’s authorization to build the wall. The emails also did not refer to the issue of whether Complainant had authorized reasonable access for Respondent to restore Complainant’s property after the July 10, 2017 directive.

Respondent submitted Mr. Rodgers’ text dated July 6, 2017, asking Complainant to “[p]lease give me a call regarding the dirt on your havasu property.” Respondent also submitted Mr. Rodgers’ undated texts requesting that Complainant allow Respondent’s crew to “put the dirt back and compact in the rear but leave the left side since it’s still [sloped] for parking” and “I think your yard returned to the way it was is Best solution for both parties.” Mr. Rodgers testified that he sent Complainant the texts on July 6, 2017, after Investigator Corlett stated that the directive would be issued.

Respondent also submitted Complainant’s text in response to Mr. Rodgers’ request to restore her land to its pre-excavation condition:

No, I don’t want anything done until I seek other options

Appreciate the offer, thanks

How is it that washing ones hands of the damage done to my property be considered in the best interest for me since I never even hired you guys to do any work on my property.

Respondent previously submitted to the Registrar its July 19, 2017 certified letter to Complainant, which provided in relevant part as follows:

This letter is in reference to ROC Complaint No. 2017-2773 dated July 10, 2017.

Per Cliff Corlett at the ROC this letter is being written to inform you that we need to gain access to your property in order to complete the Directive from the Registrar.

Mr. Gilbert and Mr. Rodgers testified, and Complainant did not dispute, that she failed to allow Respondent access for it to comply with the July 10, 2017 directive.

Investigator Corlett testified that the last time he viewed Complainant’s property was on August 7, 2017. Investigator Corlett testified that although there had been several light rains earlier, he did not see any unusual erosion or damage to the hillside. He also did not see any restoration.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Investigator Corlett testified that although a permit would have been required to build the 3’ high retaining wall, because the wall had never been built, no permit was required. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(2).

Complainant established that Respondent started constructing the retaining wall without her written or express authorization, thereby potentially providing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art, however, and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked. Respondent established that it attempted to comply with the July 10, 2017 directive, but that Complainant refused to allow it access for it to do so.

The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages. By virtue of possessing numerous contractor’s licenses, Respondent is presumed to have the expertise to determine how to properly restore Complainant’s yard. Complainant does not have a right to dictate how Respondent would comply with the directive. Instead, her remedy was to allow it reasonable access to attempt to comply with the directive and if she believed that Respondent’s restoration did not comply with the Registrar’s workmanship standards, to request that Investigator Corlett perform a compliance inspection. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

Finally, instead of allowing Respondent to restore her yard, Complainant elected to fill the footings that Respondent had dug for the 3’ foot retaining wall with dirt, without compaction. Complainant’s modification of Respondent’s work precludes her from receiving any relief in this administrative forum under A.R.S. § 32-1155(C)(2).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Raquel Cintron’s complaint in case no. 2017-2773 against Respondent Masonry and More LLC’s License Nos. CR31.199192-D, CR-9.254436-D, CR31.246231-D, and CR36.309000-D shall be dismissed.

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 five days from the date of that certification.

Done this day, October 20, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors