ALJDEC - Licensing
2022A-02298-CHC-ROC · Registrar of Contractors · 2023-03-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Alton B Payne ,
COMPLAINANT\
v.
Ironman Enterprises LLC
License No. ROC 328217,
RESPONDENT
No. 2022A-02298-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 28, 2023, 9:00 A.M.
APPEARANCES: Marcus D. Tappe, Esq., appeared on behalf of Complainant; Kelly Helgeson, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Ironman Enterprises, LLC (Respondent), is the holder of License Number 328217 issued by the Registrar of Contractors (Registrar).
2. On or about March 21, 2002, Alton Payne (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the construction of a driveway by Respondent at a residence in Clarkdale, Arizona, in May 2020 (“project”).
3. The Registrar performed an inspection of the project on April 15, 2022. Thereafter, the Registrar issued a Directive, dated May 25, 2022, requiring Respondent to correct the alleged deficiencies on the project by completing the following items by June 14, 2022, by appropriate means:
Compliance Item: 1 - Cement driveway cracking & kicking as driving over
along with breaking apart.
Investigator’s Observation: This is a lengthy driveway that spans 3
different parcels. It terminates at the complainant's home have a significant vertical rise. Starting at the top of the drive, the third and 4th panels have semi circle cracks with sections in excess of 3/32".
Several panels down from there, there are 2 panels that were poured separately (possibly replaced) as they are a darker color than the rest of the driveway. These panels have cold joints and may shift some under a load such as a
vehicle. The complainant relayed that he keeps hearing the panels moving up and down. I walked the driveway while he drove is pickup truck on it. I did not observe any movement or rocking of the panels. I believe the complainant is hearing the tires going over the control joints.
At several of the joints, the concrete has cracked all of the way through as
intended. The joints in the driveway do appear to be appropriately spaced.
At the driveway for the neighbor to the west, there is a significant chunk of the drive broken out.
This exposes the issues raised in item 10.
I believe this junk was broken by traffic of considerable weight. This break does not appear to be the result of poor work. Continuing toward the driveway entrance, there are sporadic cracks that are
consistently in the area of control joints and at the edge of the pour.
It appears that all of the entrances to the other parcels were known at the time of the pour. It is unknown if the driveway has a thickened edge.
The finish itself is well within standards. The respondent is to correct all cracks and spalls that are in excess of 3/32" in an appropriate manner.
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.
Compliance Item: 7 - Clarkdale issued a stop order on 6/18/20 as
contractor was doing job with no permit.
Investigator’s Observation: I have spoken with the CBO of Clarkdale
Paul Grasso and he indicated that the permit was applied for but the process has not been completed and no final green tag has been issued.
Governing Rule: Departure from or disregard of: (b) A building
code of this state or any political subdivision of this state in any
material respect that is prejudicial to another.
Compliance Item: 9 - Clarkdale issued permit 092783
Investigator’s Observation: As stated however the permit is not closed.
Governing Rule: Departure from or disregard of: (b) A building
code of this state or any political subdivision of this state in any
material respect that is prejudicial to another.
Compliance Item: 10 - I question if ABC and compaction was done as
well as mesh in concrete per permit
Investigator’s Observation: At the broken chunk of concrete, there does
not appear to be fiber mesh in the concrete mix. The contract appears to call for fiber mesh in the mix. The contract also calls for 4" to 8" of ABC installed as a sub grade. At the location of the chunk, it does not appear that ABC was installed. There does not appear to be evidence of excavation and it is unknown as to where any excavation may have been hauled off to.
Governing Rule: 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.
4. Upon being informed that no corrective action was performed, the Registrar then issued a Citation to Respondent, dated June 27, 2002, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2)(a) (departure from or disregard of plans or specifications);
b. A.R.S. § 32-1154(A)(2)(b) (departure from or disregard of a building code of this state);
c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b)) for failure to perform work in accordance with applicable building codes and professional industry standards;
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated August 12, 2022, that after a continuance set a hearing for February 28, 2023, at 9:00 A.M. At the February 23, 2023, hearing, Complainant Alton Payne testified on his own behalf. Kelly Helgeson, owner of Respondent, testified on behalf of Respondent. Jim Dimond, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 15. No exhibits were submitted on behalf of Respondent.
6. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he contacted the city of Clarksdale regarding a lack of a permit for the project and was told that a green tag had yet to be issued for the project.
7. Complainant testified that he had concerns about the driveway before he purchased his home in March 2021. He said he then met with the Respondent who had done the work in April 2020 who responded that he would fix it but asked him to wait before proceeding to the Registrar. He said he waited and when he again approached Respondent, Respondent stated that he did not believe there was anything to repair. Complainant described cracking throughout the driveway and a three and one half foot broken off area, a portion of which he brought to the hearing. (Complainant’s Exhibit 15).
8. Kelly Helgeson testified on behalf of Respondent that there were no plans and specifications for the project and that the previous owner did not require him to get a permit. He further testified that the Building Permit Application describing a 4-8” compacted AB base and fiber-reinforced concrete was apparently submitted by the previous owner after the project was completed . (See attachment to Complaint). In any event, he stated the project had such a base as well as a fiber mesh. He further testified that he believed the cracks and damage were caused by garbage trucks or tractors driving off the edges.
9. Administrative notice is taken of Respondent’s prior license record. Such record reflects that Respondent’s License No. 277614 was first issued on March 23, 2020, and that there were no previous disciplinary actions against it
.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing fall to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
...
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.
...
22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. A.R.S. § 32-1154(A)(2)(a). Complainant has not presented sufficient evidence to establish that Respondent departed from or disregarded plans and specifications in a material respect that is prejudicial to the owner. There was no dispute that there were no plans and specifications at the time Respondent contracted to do the project relating to an AB base or fiber mesh. (See Complainant’s Exhibit 5). After the project was completed, the city of Clarksdale apparently required certain specifications for a building permit regarding AB base and mesh that was issued after the fact. However, it would have been impossible for Respondent to depart from or disregard those plans in doing the work when they had yet to be provided to Respondent. Further, even had such specifications been required prior to the completion of the project, Complainant has not shown that the work did not meet those specifications. Respondent testified that his work met those specifications, and it appears that any evidence to the contrary would require further testing, not just cursory observations as was the case here.
7. A.R.S. § 32-1154(A)(2)(b). Complainant has presented sufficient evidence to establish that Respondent departed from or disregarded a building code of this state or any political subdivision of this state in any material respect that is prejudicial to another, and consequently its license should be disciplined for a violation of A.R.S. § 32-1154(A)(2)(b). There was no dispute that Respondent proceeded with the project without a building permit which was required by the city of Clarksdale for work of this nature. It is of no consequence that there was no requirement for a building permit in Respondent’s contract.
8. A.R.S. § 32-1154(A)(3). (Arizona Administrative Code Rule 4-9-108(a)). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a), and consequently its license should be disciplined for a violation of A.R.S. § 32-1154(A)(3). There was no dispute as to the cracks on the driveway. While Respondent speculated these were caused by garbage trucks or tractors, Respondent offered no support for the proposition that the driveway was not required to be constructed to withstand heavy vehicles.
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There is no dispute that corrective work was not performed prior to expiration of the Directive period or thereafter. Respondent failed to provide any legitimate explanation for not completing the corrective work.
10. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to establish cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(2)(b), § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Ironman Enterprises, LLC’s, License Number 328217 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
. Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, March 20, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Ironman Enterprises LLC
[email redacted]
Marcus D. Tappe
RIGHI FITCH LAW GROUP, P.L.L.C.
[email redacted]
By: OAH Staff