ALJDEC decisions subject to certification as final

2021A-00895-CHC-ROC · Registrar of Contractors · 2021-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carla Joyce Brown ,

COMPLAINANT

Copper Leaf LLC

DBA: Copper Leaf Pools,

License No. ROC 274647,

RESPONDENT

No. 2021A-00895-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 2, 2021

APPEARANCES: Carla Joyce Brown on her own behalf; Chris Cadena for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 28, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on August 2, 2021 at the Office of Administrative Hearings.

Through its Notice of Hearing ROC alleges that Respondent Copper Leaf LLC may have violated Ariz. Rev. Stat. sections 43-1154(A)(3) and (A)(22).

Chris Cadena is Respondent’s owner and qualifying party.

Complainant is Carla Joyce Brown.

Respondent and Ms. Brown entered a contract that called for Respondent to construct a concrete splash pad for Ms. Brown.

Ms. Brown filed with ROC a complaint against Respondent alleging poor work on Respondent’s part, specifically that the concrete pad was not “sand” colored as ordered.

ROC investigator Chris Fultz conducted a jobsite inspection on March 31, 2021.

On April 6, 2021, ROC issued to Respondent a Directive that provides in part:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 6th, 2021.

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DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - I was told and the contract states that the color of the concrete for the splashpad would be sand. After they poured the concrete I told Chris the owner that the concrete wasn't the sand color it was suppose to be, it was gray/concrete color. He told me that the concrete would change color after it dried in a few weeks. I contacted several other contractors that told me they had never heard such a thing. The color may get lighter but it doesn't completely change from gray to sand. Its now 5 weeks later and the splashpad is still gray, not sand. I once again contacted Chris and told him that it had not changed colors and was still gray. Chris told me that I must be color blind. I simply want what I was told I would get....a sand colored splashpad not gray.

Investigator’s Observation: The splash pad concrete is gray and not sand as ordered. This will need to be fixed by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Respondent did not agree that the concrete was gray and in an email to Mr. Fultz dated May 7, 2021, it provided information about its position. That email shows that: an expert from the American Concrete Institute had inspected the work and found it to be the correct color; the concrete was however experiencing efflorescence (which is calcium hydroxide) that was causing the concrete to appear gray; given that sand is a light color, the efflorescence was more noticeable; ROC should wait 90 to 120 days before making its determination about the color; Respondent had obtained proof from the batch plant that the sand color pigment was added to the mix; and Respondent had cleaned the existing efflorescence from the surface of the pad.

Efflorescence is calcium hydroxide that occurs in all concrete and rises to the top of poured slabs or pads and can make the surface look lighter in color or faded, which is more noticeable on colored concrete surfaces.

ROC issued to Respondent a Citation dated May 27, 2021 through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

At the hearing, Mr. Cadena provided credible testimony consistent with Respondent’s email of May 27, 2021.

Mr. Cadena also explained that the pad was up to ten inches thick which would increase the time required before the efflorescence stopped rising to the top of the pad. He also explained that it had been very rainy after the pad was poured and at one time the pad was under water, both of which would also add to the time required for the pad to cure.

Mr. Cadena explained that curing in this sense was not referring to the structural properties of the concrete, but rather the elimination of the calcium hydroxide from the concrete.

Respondent had entered into evidence the batch ticket from its concrete supplier that shows the sand coloring was added to the batch at issue and a letter from the supplier’s quality control manager, Tom Villa, showing that the concrete had been appropriately colored. Mr. Villa’s letter shows that the pigment manufacturer calls for a very low dosage of pigment.

Respondent also had entered into evidence photographs of the pad taken between January and May 2021, which was the last time Respondent was at the site. Those photographs include photos in which a sand colored sample block and a grey sample block have been placed on the pad. These show that the concrete does match the sand colored sample, albeit not in every photograph.

In particular, Mr. Cadena drew attention to photographs in which the sample block was placed at the edge of the pad, in which the pad is seen to be sand colored.

Included in Respondent’s exhibit are photographs taken on the same day that show the pad in a dry condition, at which time it does have a grey appearance, and then when the pad is wet, at which time the pad appears brown or sand colored. Mr. Cadena testified to the effect that the moisture on the pad affects the efflorescence to the point that when the concrete is wet, the color is not being obscured by that efflorescence.

Mr. Cadena testified that Complainant owes Respondent about $10,000 for the work at issue, which is consistent with Ms. Brown’s complaint that shows she had paid $15,800 and that the contract price was $25,066.71.

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).

“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).

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).

There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified, or financially irresponsible.

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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3. Violation of any rule adopted by the registrar.

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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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

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).

It has not been shown by a preponderance of the evidence that Respondent’s work did not meet the workmanship standards. To the contrary, Respondent presented credible evidence that the concrete included the required sand color, and Respondent presented numerous photographs showing that the concrete is sand colored, but is experiencing efflorescence, which occurs with all concrete, that at times is making it appear to be grey. Consequently, it has not been proven that Respondent violated Ariz. Admin. Code section R4-9-108(A) or Ariz. Rev. Stat. section 32-1154(A)(3).

Because Respondent’s work was not deficient, there was no corrective action necessary and Respondent has not violated Ariz. Rev. Stat. section 32-1154(A)(22).

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2021-00895 is 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 is forty days after the date of that certification.

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-137160-45720000Done this day, August 4, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000