FINACT2019A-00096-ROC.pdf
2019A-00096-ROC · Registrar of Contractors · 2019-07-03
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Brian R Bloom, Case No. 2019-00096 COMPLAINANT, Docket No. 2019A-00096-CHC-ROC v. Pat Loescher Concrete LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 278468, AND ORDER RESPONDENT.
Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. MODIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that Decision and hereby modifies it for the reasons set forth below. WRITTEN JUSTIFICATION The Registrar’s Citation against Respondent charged possible violations of A.A.C. Rule 4-9-108, and thereby of A.R.S. § 32-1154 (A)(3); § 32-1154 (A)(12) (two counts, sections 32-1124(B) and 32-1158); § 32-1154 (A)(16); and § 32-1154(A)(22). ALJ Dec. 3:4-13. 1. The Registrar properly charged Respondent with violations of A.R.S. §§ 32-1124(B) and 32-1158, and these violations were substantiated at hearing. The administrative law judge determined that the evidence established that the Respondent violated A.R.S. §§ 32-1154(A)(3), (A)(16), and (A)(22). ALJ Dec. 6:28-29, 7:12-13, and 7:19-21. However, the administrative law judge found no violation of A.R.S. §§ 32-1124(B) (failure to list license number preceded
of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 by “ROC”) and 32-1158 (minimum elements of a contract). The administrative law judge reasoned that
because Complainant did not allege these violations in his Complaint, “these allegations are not within the
scope of this hearing and not properly before the tribunal.” ALJ Dec. 8:9-11 (citing A.R.S. § 41-
1092.07(F)(6)) (findings of fact must be based on matters officially noticed). The Registrar finds this
reasoning to be erroneous.
A.R.S. § 32-1154(B) provides: The registrar may on the registrar’s own motion, and shall on the written complaint of any owner or contractor that is a party to a construction contract … investigate the acts of any contractor within this state…. A.R.S. § 32-1155(A) further provides: On the filing of a written complaint with the registrar charging a licensee with the commission … of an act that is cause for suspension or revocation of a license … the registrar after investigation, in its sole discretion, may issue a citation directing the licensee … to appear by filing with the registrar the licensee’s written answer to the citation and complaint showing cause, if any, why the licensee’s license should not be suspended or revoked. Pursuant to these statutes, the Registrar, upon receiving a complaint, is required to investigate the acts of a licensed contractor, and has sole discretion in issuing citations. Specifically, upon receiving a complaint against a licensed contractor, the Registrar conducts an investigation. Following its investigation, the Registrar may issue a Citation which may (1) mirror the charges in the complaint, (2) include additional charges, or (3) include fewer charges. In other words, the Registrar, in investigating a licensed contractor and issuing a citation, is not bound by the allegations appearing in the complaint. The administrative law judge notes that the Citation issued in this case “shows that Mr. Bloom’s complaint was the basis for the allegations that Respondent may have violated of (sic) Ariz. Rev. Stat. sections 32-1124(B) and 32-1158,” and that Mr. Bloom’s complaint did not specifically allege these violations. ALJ Dec. 8:1-5. While this is correct, the Citation issued by the Registrar after its investigation specifically and plainly noted the additional alleged violations of 32-1124(B) (“Charge 2”) and 32-1158 (“Charge 3”). The fact that these allegations were not raised in Mr. Bloom’s Complaint does not excuse the Registrar from fulfilling its statutory mandate of ensuring contractors’ compliance with the laws. Further, as the administrative law judge notes, the evidence introduced at hearing shows that Respondent did violate
of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 sections 32-1124(B) and 32-1158. ALJ Dec. 8:6-9. Therefore, because the Registrar properly included these
charges in the Citation, and the evidence supports the charges, dismissal of the charges is not warranted.
2. Respondent violated the Registrar’s workmanship standards by using concrete not in
conformity with the applicable building code.
The administrative law judge found that Respondent did not violate A.R.S. § 32-1154(A)(3),
specifically A.A.C. R4-9-108, in its use of concrete that was rated below the applicable building code
requirements. ALJ Dec. 7:1-8. While the administrative law judge reasoned that Respondent ordered concrete
below the strength requirement, he noted that Complainant “presented no evidence as to the actual strength of
the batch of concrete that was used.” ALJ Dec. 7:4-8. The Registrar finds this reasoning erroneous, and an
improper shifting of the burden of proof.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of
proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The
standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-9-119.
Here, Complainant met its burden of proof in establishing that the concrete ordered by Respondent
fell below code requirements. It was undisputed that Respondent ordered concrete at 3,000 psi, while the code
required a “design strength of 3,500 psi at 28 days.” ALJ Dec. 3:27-30. Thus, Complainant met its burden of
proof, and the burden then shifted to Respondent to establish an affirmative defense. To this end, Respondent
submitted evidence showing that the concrete manufacturer “overdesigns its mixes by 25%,” that thirty
batches of concrete tested between August 2017 and January 2019 averaged 3755 psi, and that the “batches
tested in June 2018 ranged from 3250 to 4080 psi.” ALJ Dec. 4:2-8.
The evidence submitted by Respondent—showing that some batches of concrete from the
manufacturer met code requirements—is insufficient to show that the concrete used by Respondent in this
case met the requirements. In light of the fact that the concrete ordered by Respondent was rated below the
code requirement of 3,500 psi, Respondent was required to present something more than the fact that some of
the batches produced during an eighteen-month timeframe would have met the requirements. The conclusion
of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 that the concrete did not meet code requirements is further supported by the occurrence of spalling, which
Investigator Philpott assumed was due to the strength of the concrete. ALJ Dec. 3:25-26.
Therefore, because the evidence submitted by Respondent did not overcome Complainant’s showing
that the concrete did not meet the code requirements, the Registrar finds that Respondent’s concrete work did
not meet workmanship standards in violation of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3).
CONCLUSION AND ORDER
The Registrar hereby modifies the Administrative Law Judge Decision by:
• On page 7, replacing paragraph 14 with: “The preponderance of the evidence shows that the
concrete ordered by Respondent did not meet the applicable building code requirements. Mr.
Bloom established that the concrete ordered by Respondent had a design strength of 3,000 psi.
While Respondent introduced evidence showing that some of the concrete batches from the
manufacturer could have met the building code requirements, Respondent did not meet its
burden to show that the concrete used on this project in fact met those requirements. Therefore,
Respondent violated A.R.S. § 32-1154(A)(3).”
• Deleting page 7, paragraph 19.
• On pages 7-8, replacing paragraph 20 with: “The preponderance of the evidence shows that
Respondent violated A.R.S. § 32-1124(B) by failing to include “ROC” before his license
number on the estimate he provided to Mr. Bloom, and that Respondent violated A.R.S. § 32-
1158(A) (minimum elements of a contract).
The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which
becomes effective on August 11, 2019.
IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable
to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to
the Registrar’s physical address or mailed to:
Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748
of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTE On page 4, line 30 replace “(#27848)” with “(#278468)”. Dated July 2, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail July 2, 2019 to:
Respondent Pat Loescher Concrete LLC PO Box 303377 Flagstaff, AZ 86003 Complainant Brian R Bloom 402 W Apache Rd Flagstaff, AZ 86001
AND copy electronically mailed this same date to:
Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar
Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Case No. 2019-00096 / SA
of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 6.6.2019 ROC LEGAL
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brian R Bloom, No. 2019A-00096-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Pat Loescher Concrete LLC, DECISION License No. ROC 278468, RESPONDENT
HEARING: May 16, 2019 APPEARANCES: Brian Bloom on his own behalf; Pat Loescher for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On March 26, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on May 16, 2019 at the Office of Administrative Hearing. 2. Respondent Pat Loescher Concrete LLC, holds license No. 278468 issued by ROC. Pat Loescher is a member of the LLC and the qualifying party on the license. 3. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint. 4. Complainant Brian R. Bloom hired Respondent to install a concrete patio at his house in Flagstaff. The concrete was poured on June 19, 2018. 5. Although Respondent installed the patio, Mr. Bloom did not pay Respondent to seal the concrete, but rather he sealed it himself. The sealant was necessary to prevent the concrete from deteriorating as a result of Mr. Bloom’s dog urinating on the patio. 6. Mr. Bloom filed a complaint against Respondent. 7. ROC Investigator Steve Philpot conducted a jobsite inspection that resulted in ROC issuing to Respondent a DIRECTIVE dated February 20, 2019 that provides in part:
Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 6.6.2019 ROC LEGAL
You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 4: Debris filled surface cavity present immediately after installation. Dismissed. Investigator’s Observation: This complaint item is substantiated. The void in the concrete is unsightly and fails to meet minimum industry standards. Respondent shall correct by appropriate means. Complaint Item 8: Surface blister/deterioration after less than-six months. Accused me of damage Investigator’s Observation: This complaint item is substantiated. All concrete should be placed in compliance with applicable codes and standards. The documentation submitted with this complaint indicates 3,000 PSI concrete has been used on this project. For Residential projects within the city of Flagstaff, 3,500 PSI concrete is the minimum allowable design strength for flat work exposed to weather. Respondent shall correct by appropriate means. Complaint Item 11: Contractor has expired Residential License. Investigator’s Observation: This is a residential project and the Respondent currently only is licensed to perform commercial work. The respondent is out of scope on this project. Respondent: You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
8. ROC’s Directive required Respondent to provide ROC with proof that it had made the repairs by 5:00 p.m. on March 8, 2019. Respondent did not complete the RECEIVED 6.6.2019 ROC LEGAL
repairs ROC ordered it to complete within the time allotted and had not completed that work as of the hearing date. 9. ROC issued to Respondent a CITATION dated March 11, 2019.
10. Through the CITATION, ROC notified Respondent that if the act or acts
charged in Mr. Bloom’s written complaint were proved at an administrative hearing,
then Respondent may be found to have violated Ariz. Rev. Stat. sections 32-
1154(A)(3), (A)(12)(two counts, sections 32-1124(B) and 32-1158), and (A)(16).
11. The CITATION shows that ROC could not determine whether the
allegations in Mr. Bloom’s complaint are supported by legally sufficient evidence to
prove that Respondent has violated the cited provisions of ARIZ. REV. STAT. section 32-
1154 and that a hearing would be conducted for that purpose. Through the CITATION,
ROC also notified Respondent that it may have violated ARIZ. REV. STAT. section 32-
1154(A)(22).
12. Regarding complaint Item 4, surface cavity, Mr. Philpot testified to the
effect that there is a cavity in the concrete that is a little bigger than a quarter. It is likely
that there was some dirt or other debris in the pump-line when the concrete was
applied. Mr. Loescher testified as to his willingness to make a repair to that area, but he has acknowledged that Respondent is not licensed to do residential work. 13. Mr. Philpot acknowledged that there is no objective standard for determining whether a cavity in concrete violates the workmanship standards. 14. Regarding complaint Item 8, surface blistering or spalling, Mr. Philpot testified to the effect that he was of the opinion that the spalling could have been caused by Mr. Bloom using ice-melt on the patio or because the design strength of the concrete used was 3000 psi. Because Mr. Bloom informed Mr. Philpot that he had not used any ice-melt on the patio, Mr. Philpot assumed that the spalling was due to the strength of the concrete. 15. Mr. Philpot cited the Flagstaff building code showing that concrete for a patio such as Mr. Bloom’s must have a design strength of 3500 psi at 28 days. 16. Respondent purchased the concrete from Arizona Materials. Although Respondent ordered concrete at 3000 psi, Respondent had entered into evidence a RECEIVED 6.6.2019 ROC LEGAL
letter from Arizona Materials showing that to account for the freeze/thaw cycles in the area, it overdesigns its mixes by 25%. When he ordered the concrete Mr. Loescher was aware that Arizona Materials overdesigned its mixes.
17. Although it appears that Arizona Materials did not test the batch of
concrete that was delivered to Mr. Bloom’s house, Respondent’s exhibit shows that
between August 2017 and January 2019, Arizona Materials tested thirty batches of that
mix and on average, the mix had a 28-day strength of 3755 psi. The batches tested in
June 2018 ranged from 3250 to 4080 psi.
18. Mr. Loescher explained that the concrete actually used at Mr. Bloom’s
house could be tested, but that would require taking a core from the patio.
19. Dog urine can also cause spalling, which is why it was necessary for the
patio to be sealed. Mr. Bloom did not dispute that his dog urinates on the patio, but
testified that this had not occurred before he completed the sealing.
20. Mr. Loescher testified to the effect that when he observed the patio during
Mr. Philpot’s inspection, he could see that not enough sealant had been applied. Mr.
Bloom disputed this and testified that he had followed the manufacturer’s specifications
when sealing the patio. 21. Mr. Loescher was of the opinion that the spalling had been caused by dog urine. This opinion was based in part on the fact that only a two-foot by two-foot area was affected and that area was close to the access point to the patio. 22. Mr. Bloom testified that additional spalling has occurred since Mr. Philpot’s inspection. 23. Regarding complaint Item 11, Mr. Loescher acknowledged that Respondent’s residential license has expired. But he explained that when Respondent obtained its commercial license in 2012 he thought that the residential one would remain in effect. He also explained that ROC had an old address for Respondent’s residential license but the correct address for the commercial license. 24. ROC’s website shows that Respondent’s residential license (#146154) was issued on June 14, 1999 and expired on July 1, 2014, and that its commercial license (#27848) was issued on April 26, 2012. RECEIVED 6.6.2019 ROC LEGAL
25. There has been no prior discipline against either of Respondent’s licenses.
CONCLUSIONS OF LAW
1. Unless otherwise provided by law, a party asserting a claim, right, or
entitlement bears the burden of proof; a party asserting an affirmative defense has the
burden of establishing the affirmative defense. The standard of proof on all issues in
this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119.
2. “At a hearing on an agency action to suspend, revoke, terminate or
modify on its own initiative material conditions of a license or permit, the agency has
the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2).
3. “At a hearing on an agency's imposition of fees or penalties or any agency
compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-
1092.07(G)(3).
4. A preponderance of the evidence is: The 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. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. An Administrative Law Judge Decision’s findings of fact shall be based exclusively on the evidence and on matters officially noticed. ARIZ. REV. STAT. § 41- 1092.07(F)(6). 6. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 7. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).
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8. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
9. The Administrative Law Judge may consider ROC’s administrative record.
See ARIZ. ADMIN. CODE § R4-9-118.
10. ARIZ. REV. STAT. section 32-1154(A) provides that:
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: ***** 3. Violation of any rule adopted by the registrar. ***** 12. Failure in any material respect to comply with this chapter. ***** 16. Knowingly contracting beyond the scope of the license or licenses of the licensee. ***** 22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
11. ARIZ. REV. STAT. SECTION 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. SECTION 32-1154(A)(22). 12. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 13. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(3) because the concrete patio has a small cavity. RECEIVED 6.6.2019 ROC LEGAL
14. With respect to the strength of the concrete, although it is a workmanship violation to use concrete that is not in conformity with the applicable building code, it has not been shown by a preponderance of the evidence that Respondent used
concrete that does not meet Flagstaff’s code requirement. Although Respondent
ordered concrete with a 3000-psi strength, Mr. Loescher was aware that Arizona
Materials would over-design the mix, the evidence shows that the mix used had an
average strength of 3755 psi, and Mr. Bloom presented no evidence as to the actual
strength of the batch of concrete that was used.
15. It has not been proven by a preponderance of the evidence that the
spalling was the result of a workmanship violation by Respondent as opposed to dog
urine.
16. The preponderance of the evidence shows that Respondent violated Ariz.
Rev. Stat. section 32-1154(A)(16) by conducting residential work at a time when
Respondent was not licensed to do so. That Mr. Loescher was not aware that he was
not properly licensed to do residential work is not a defense to this allegation. See Ariz.
REV. STAT. § 1-215(17)(“knowingly” requires “[o]nly a knowledge that the facts exist that
bring the act or omission within the provisions of the statute using such a word” and “[d]oes not require any knowledge of the unlawfulness of the act or omission.”). 17. The preponderance of the evidence shows that Respondent violated ARIZ. REV. STAT. section 32-1154(A)(22) because it failed to correct the cavity in the patio in the time ROC ordered it to do so. 18. Because it has not been proven that the spalling was the result of poor workmanship by Respondent, its failure to correct that spalling within the time ROC ordered it to do so is not a violation of subsection 32-1154(A)(22). 19. Respondent was not licensed to perform residential work when it conducted the work at Mr. Bloom’s. It was not possible for Respondent to correct this deficiency, consequently his failure to do so cannot fairly be considered a violation of subsection 32-1154(A)(22). See Gutierrez v. Industrial Commission of Arizona. 20. The NOTICE OF HEARING shows that the scope of the hearing is limited to the issues raised in the CITATION and Mr. Bloom’s complaint. ROC’s CITATION shows RECEIVED 6.6.2019 ROC LEGAL
that Mr. Bloom’s complaint was the basis for the allegations that Respondent may have violated of ARIZ. REV. STAT. sections 32-1124(B) and 32-1158. In his complaint, Mr. Bloom did not allege that Respondent’s estimate did not contain the acronym “ROC”
before his license number, nor did he allege that the contract between the parties did
not contain the minimum elements required by statute. Consequently, although Mr.
Bloom had entered into evidence letters from ROC to Respondent showing that
Respondent may have violated section 32-1124(B) by failing to include “ROC” before
his license number on the estimate he provided to Mr. Bloom, and that Respondent
may have violated section 32-1158(A)(minimum elements of a contract), these
allegations are not within the scope of this hearing and not properly before the tribunal.
See ARIZ. REV. STAT. § 41-1092.07(F)(6).
21. Because Respondent has violated ARIZ. REV. STAT. sections 32-
1154(A)(3), (A)(16) and (A)(22), its license is subject to discipline.
22. In this matter, Respondent’s workmanship violation was minor.
Nevertheless, performing residential work without the appropriate license is a serious
violation because a homeowner cannot access the residential recovery fund unless the
contractor is properly licensed. Considering the facts and circumstances of this matter, including that Respondent has no prior discipline, a five-day suspension and a civil penalty of $250 are appropriate. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter Respondent’s license number 278468 is suspended for five days; IT IS FURTHER ORDERED that within ten days of the final Order in this matter, Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds.
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 is forty days after the date of that certification. Done this day, June 3, 2019.
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/s/ Thomas Shedden Thomas Shedden Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors