ALJDEC decisions subject to certification as final

2020A-04795-CHC-ROC · Registrar of Contractors · 2021-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Yavapai County,

COMPLAINANT

B A S Construction and Drywall LLC,

DBA: R N Construction and Payne Concrete, License No. ROC 247812,

RESPONDENT

No. 2020A-04795-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 1 and April 8, 2021

APPEARANCES: David Williams for Complainant; Bradley A. Schupbach appeared for Respondent on March 1, 2021, but no one appeared for Respondent on April 8, 2021

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 29, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on March 1, 2021 at the Office of Administrative Hearings.

Through the Notice of Hearing ROC alleges that that Respondent BAS Construction and Drywall LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(2)(b), (A)(3) and (A)(6).

Respondent holds license No. 247812 issued by ROC. Bradley A. Schupbach is Respondent’s owner.

Complainant is Yavapai County.

The matter was convened on March 1, 2021, at which time the parties agreed to continue the matter because neither party had submitted a disclosure statement as required by Ariz. Admin. Code section R4-9-118.

The matter was rescheduled to convene at 9:00 a.m. on April 8, 2021.

No representative for Respondent appeared on April 8, 2021, and the matter was convened in Respondent’s absence at about 9:15 a.m.

David Williams, Complainant’s Director of Development appeared and testified for Complainant, which also presented the testimony of Chief Building Official Carrie Holmes. ROC investigator Jim Dimond also testified.

Respondent entered a contract with Kristine Casper to build a house on West Live Oak Drive in Prescott.

After the trenches and steel/rebar for the footings had passed inspection, Respondent removed much of the vertical rebar.

The vertical rebar is typically referred to as J bar because it is so shaped.

The applicable building codes and plans required the J bar to be installed by hooking it under the horizontal rebar and tying it with wire to the horizontal rebar.

A failure to properly install the rebar can result in a failure of the structural integrity of the footings.

When Ms. Casper asked why the J bar was being removed, Respondent’s employee informed her that this was the way they did it.

The concrete was poured with missing J bar and possibly with pieces that were not properly tied to the horizontal rebar. Respondent subsequently pushed some pieces of J bar through the wet concrete, which does not meet the County’s code requirements.

Ms. Casper alerted the County building officials and provided the County with photographs showing the removed J bar on the ground while concrete was being poured. The building officials contacted the Yavapai County Sheriff’s Office, which began a criminal investigation.

On July 30, 2020, Mr. Williams and Ms. Holmes conducted a jobsite inspection at which time the Sheriff’s Office was also on site conducting its own investigation.

Mr. Williams recorded his inspection using his body worn camera, which video is in evidence.

On July 30, 2020, the approvals of the trenches and steel were changed from “pass” to “fail” and a stop-work order was issued.

Because it is not known which pieces of J bar were properly secured to the horizontal rebar, the homeowner will need to have the footings x-rayed. The engineer of record provided an opinion showing that the footings would need to have holes drilled and vertical rebar installed using epoxy.

During the investigations on July 30, 2020, Respondent took the position that some of the J bar had been removed because it was not in proper alignment.

Accepting that the J bar was out of alignment, Respondent should have stopped the planned concrete pour, adjusted the rebar, and had the work re-inspected. Alternatively, Respondent could have replaced the vertical rebar after the concrete was poured, but adding rebar to cured concrete requires the supervision of an engineer and requires a sequence of steps including that the rebar be epoxied in place.

Under both alternatives, Respondent would have incurred additional expense. Avoiding this expense appears to have been Respondent’s motive in proceeding as it did.

On October 8, 2020, the County filed with ROC a complaint against Respondent.

On October 29, 2020, Mr. Dimond conducted a jobsite inspection at which time he determined that there was vertical rebar that had been cut off and new rebar placed in holes that had been drilled, and that a section of the footers had been poured without the required inspection after the original work was completed.

Respondent did not have an engineer supervise its installation of the vertical rebar that Mr. Dimond observed and Respondent did not epoxy the rebar.

Because the Yavapai County Sheriff’s Department had an open investigation, ROC did not issue to Respondent a Directive.

ROC issued to Respondent a Citation dated September 23, 2020 through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(2)(b), (A)(3) and (A)(6).

CONCLUSIONS OF LAW

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.

“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).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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). The preponderance of the evidence shows that Respondent acted in an unscrupulous manner by removing the J bar after the County’s inspection.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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:

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2. Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

3. Violation of any rule adopted by the registrar.

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6. The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. For the purposes of this paragraph, "fraudulent act" means a material misrepresentation that a licensee makes, that is relied on by another person and that results in damage to that person or that person's property.

“A contractor shall perform all work in a professional and workmanlike manner.” To meet that standard the contractor’s “completed work [must] meet[ ] the standards of a similarly licensed contractor possessing ordinary skill and capacity.” Ariz. Admin. Code § R49108(a) and (b).

Respondent’s work did not comply with the applicable building codes or the applicable plans because it removed the J bar after the County’s inspection and it did not ensure that the J bar was properly attached to the horizontal rebar. These acts were material and prejudicial to Ms. Casper because her building project was halted and she will accrue additional expense to correct Respondent’s work. Consequently, Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(2)(a) and (b).

Respondent actions are also in violation of Ariz. Admin. Code section R4-9-108(a) and (b).

Respondent committed a fraudulent act in violation of Ariz. Rev. Stat. section 32-1154(A)(6) because Ms. Casper relied on Respondent’s statements when she question why it had removed the J bar and that reliance has resulted in economic damage to Ms. Casper.

Respondent’s violations are serious and its license should be revoked.

RECOMMENDED ORDER

IT IS ORDERED that Respondent BAS Construction and Drywall LLC’s license number 247812 is revoked.

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.

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-137160-45720000Done this day, April 27, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000