ALJDEC decisions subject to certification as final

2021A-04611-CHC-ROC · Registrar of Contractors · 2022-04-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Alexander Oberst,

COMPLAINANT

Rigid Masonry Inc

License No. ROC 269438,

RESPONDENT

No. 2021A-04611-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 14, 2022

APPEARANCES: Thomas L. Brown, Esq. for Complainant; Travis Zinner for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 5, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 14, 2022 at the Office of Administrative Hearings.

The Notice of Hearing shows that Respondent Rigid Masonry Inc. is alleged to have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(2)(b), (A)(3) and (A)(22).

Respondent holds license No. 269438 issued by ROC. Travis Zinner is Respondent’s owner. Respondent chose not to renew its license, which was expired as of the hearing date.

Complainant is Robert Alexander Oberst. Mr. Oberst and his wife Shakila Oberst hired Respondent to build block walls and make changes to an existing block wall at their house at 6236 East Greasewood Street in Apache Junction. The house is located in Pinal County.

There was no written contract and the project changed over time. The total price was $39,947.87, which was paid in full.

Mr. Zinner appeared and testified for Respondent; Mr. Oberst, who was represented by counsel, testified on his own behalf and presented the testimony of Ms. Oberst, Sarah Smith a Pinal County code compliance supervisor, and ROC investigator Mark Nipp.

The walls are on the east and west sides of Complainants’ property extending north from the south boundary toward their house. The plans show that there were to be no walls built in the southern 33 feet of the property and that the walls in the next 30 feet to the north could be no taller than two feet.

The parties agreed to changes that did not follow the approved plans: on the west side, Respondent built a wall in the 33 feet in which no wall was to be built, and on both the east and west sides the walls in the next 30 feet were built higher than two feet.

The County asserted that these walls were also violations of the applicable code, and Complainants eventually paid $3800 to another contractor to have the walls brought into compliance. As the project was proceeding, Mr. Oberst was in communication with the County about the applicable codes, but he testified that this did not include discussion of the conditions at issue in this matter.

Mr. Oberst applied for the permit on October 5, 2020; in doing so he acknowledged that he was responsible for the work and that the project would comply with the applicable County codes.

The permit was reviewed on October 20, 2020, and the approved plans are dated November 10, 2020. The approved plans show that “nothing in the first 33 feet” from the road or right-of-way toward house or north and nothing over two feet high in the next 30 feet toward the house.

When Respondent started its work, there was an existing block wall in the southwest corner of the property running to east. Complainants told Respondent that this wall marked the boundary of their property.

The project changed as it progressed, with Complainants requesting changes, including increasing the length of the western wall and increasing the heights of both walls. Mr. Zinner testified to the effect that he did not believe these changes required the County’s approval.

Respondent installed the footings that passed all inspections, which included setbacks.

After the footings were installed, the County entered a stop-work order based on an allegation that the walls exceeded the allowable height of the setback exception found in Section 2.150.100(A)(3) of the County Development Code.

Complainants and their attorney worked with the County to resolve the stop-work order, but Respondent was not involved. County officials were at Complainants’ home while working to resolve the stop-work order and presumably saw the footings and the pre-existing wall at the property’s corner. Respondent testified that no one ever said anything about a problem with the setbacks.

Through a letter to Complainants’ attorney dated January 12, 2021, the County informed Complainants that the stop-work order would be lifted as of January 13, 2021.

Work resumed and Respondent completed the walls on February 9, 2021.

Complainants presented evidence showing that over the course of several months Respondent did not follow through in getting the final approval from the County and Respondent was not responsive to Complainants’ requests for it to do so.

At the hearing, Mr. Zinner testified that the delays were not Respondent’s fault, but rather were because the engineer was not responsive to Respondent. He testified to the effect that the engineer gave this project low priority because the parties had twice missed appointments.

Final approval of the project had not been obtained when on June 25, 2021, the County issued a Courtesy Notice showing that the project might be in violation of the Code section 2.150.100 (Fence exceeds allowable height and/or setbacks). The Notice includes a description showing that the wall does not conform with the permit because it was built in the first 33 feet and because the next 30 feet exceeded the two-foot height limit, and it instructs Complainants to ensure that their “wall is not in the first 33 ft (Federal Patent Easement)” and to reduce the height of the next 30 feet to two feet.

The Notice shows that a failure to respond to the Notice would result in an inspection and possible fines of $750 per violation.

On September 16, 2021, Mr. Oberst filed with ROC a complaint against Respondent alleging abandonment.

To facilitate resolution of the issues alleged in the County’s Courtesy Notice, compliance officer Heather Wright performed an inspection of the site on October 1, 2021, during which she was accompanied by Ms. Smith, compliance officer Magda, and a Deputy County Attorney. Complainants and their attorney were also present.

Officer Wright verified that on the west side, the wall was built in the first 33 feet and that the next 30 feet was 4 feet 8 inches over the 3-foot limit, and that the 30 feet of wall on the east was 1 foot 7 inches over the 3-foot limit. Ms. Smith agreed with Officer Wright’s assessment.

Through an email dated October 27, 2021, the County provided Complainants Officer Wright’s investigation case-note and it responded to the question of where the setback is measured from:

As to your question about where the setback is measured from, subject to limited exceptions, the Code requires that detached accessory buildings, which include fences and walls, have a “[m]inimum distance to [the] front lot line [of] 30 feet.” PCDSC 2.55.030(D). In a case of a lot abutting only one street, the Code defines “Lot line, front” as “the line separating such lot from the street.” PCDSC 2.10.010. The Code defines “street” as “a way dedicated to the public which affords the principal means of access to abutting property.” PCDSC 2.10.010. Black’s Law Dictionary (11th ed. 2019) defines dedication as “[t]he donation of land or creation of an easement for public use.” Therefore, because the front of the Oberst’s property is abutting a federal patent easement (i.e., a dedication for public use) that is the principal means of accessing the properties on Holmes Road, the Obserst’s cannot build a fence within 30 feet of the federal patent easement unless a setback exception applies.

Ms. Smith testified to the effect that the in the Oberst’s case, the lot line did not start until 33 feet north of the southern boundary because that 33 feet was in the Federal Patent Easement.

ROC’s Mr. Nipp conducted a jobsite inspection on October 26, 2021.

On October 28, 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 November 15, 2021.

***

DIRECTIVE REQUIREMENTS

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

Compliance Item # 3: “Rigid Masonry did not complete the work according to the agreement or approved plans and permit”

Investigator’s Observation: Verified

The complainant explained that there are three issues were brought to their attention when they did not receive approval on their final inspection.

1. The first 33’ of the west wall was built within southern the setback.

2. The second 30’ of the west wall exceeds the height restriction and approved plans, which only allowed 2’ over the retaining wall.

3. The first 30’ of the east wall also exceeds the height restriction and approved plans, which only allowed 2’ over the retaining wall.

I inspected the project and noted that the west wall appears to be constructed inside the setback although I did not attempt to determine the property lines. This should be verified by a qualified surveyor. I noted that the second portion of the west wall exceed 2’ above the retaining wall. I also noted the east wall exceeded 2’ above the retaining wall. I reviewed the approved plans (Pinal County Community Development Tracking #PER20-05360, dated 11/10/2020) which were provided to me by the respondent. The plans are stamped in red, “Nothing within the first 33 feet” and “Nothing over 2 feet within 30’ front”. Additionally, the drawing does not include a wall within the first 33’ of the west or east side of the southern property line. The respondent provided me with a copy of the Pinal County Building Inspector’s notes. I reviewed those notes and confirmed that their findings agree with my own.

The respondent stated the complainant asked to add the portion of wall inside the setback and to add an extra run of block on the east wall. It is a well-accepted practice in construction that a contractor may sometimes have to tell a client that they cannot violate building codes or work outside of the scope of the building permit.

The respondent should correct by appropriate means.

Reference Picture(s) 2-9

Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code

Governing Rule: Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner

ROC concluded that none of Complainants’ other allegations required action on Respondent’s part.

Respondent did not comply with ROC’s Directive.

Because Respondent had not renewed its license, the license was not active and Respondent could not itself perform the work ROC ordered it to perform.

Complainants could have requested a hearing to challenge the County’s finding that the walls were not in compliance with the Code, but instead paid another contractor $3800 to remove the portions of the wall at issue. On the west side, the wall was removed from the first 33 feet and seven courses of block were removed from the next 30 feet; on the east side two courses of block were removed from the 30 foot section at issue.

As of the hearing date, the County had apparently not taken any action regarding Complainants’ preexisting wall located in the right-of-way at the southeast corner of their property.

ROC issued to Respondent a Citation dated November 30, 2021 through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(2)(b), (A)(3) (i.e., R4-9-108(a)) and (A)(22).

At the hearing, Mr. Nipp testified that ROC had not concluded that Respondent had abandoned the project and that the Citation should not have included the alleged violation of subsection (A)(1).

Mr. Nipp’s opinion was to the effect that by failing to follow the plans, Respondent had not performed in a professional and workmanlike manner and it had violated the building code.

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).

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

ROC has jurisdiction over Respondent’s license even though the license is cancelled. Ariz. Rev. Stat. § 32-1154(D).

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:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of:

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

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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. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(a).

Ariz. Rev. Stat. section 32-1154(E) provides that “The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of [Ariz. Rev. Stat. 32-1154] subsection A, paragraph 22.”

Mr. Nipp testified that Respondent did not abandon the project and that it should not have been charged with a violation of subsection (A)(1), which allegation has therefore not been proven.

Although Respondent did deviate from the applicable code, it has not been proven that this was prejudicial to Complainants, because Complainants agreed to all the conditions that were not inconformity with the code. It has not been proven that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(2)(b).

The preponderance of the evidence shows that Respondent failed to perform its work in a professional and workmanlike manner because Respondent did not adhere to the plans. Although the evidence shows that Complainants requested the changes that were made as the project evolved, Respondent was not required to agree to Complainants’ changes and should not have done so without having the plans amended. The preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R49108(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Respondent did not comply with ROC’s Directive within the time ordered. Respondent asserts that this was justified because it allowed its license to expire and it could not therefore perform the work. But Respondent could have paid Complainants to hire another contractor. Consequently, Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(22).

Because Respondent has violated subsections (A)(3) and (A)(22), ROC has authority to discipline its license.

In this case it is appropriate to suspend Respondent’s license until it pays to Complainants $3800 as restitution for the cost to modify Respondent’s deficient work. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990).

It is also appropriate to assess against Respondent a civil penalty of $200 for its violation of subsection (A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED that Respondent Rigid Masonry Inc.’s license number 269438 be suspended until the Registrar of Contractors receives proof that it has paid to Complainants $3800 in restitution;

IT IS FURTHER RECOMMENDED that the Registrar assess against Respondent a civil penalty of $200, to be paid within thirty days of the final order in this matter.

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 4, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By: Miranda Alvarez

Legal Secretary