ALJDEC - Licensing
2022A-08138-CHC-ROC · Registrar of Contractors · 2023-03-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Stanley David Murray ,
COMPLAINANT
v.
Genesis Concrete Construction LLC
License No. ROC 329964,
RESPONDENT
No. 2022A-08138-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 27, 2023, 1:00 P.M.
APPEARANCES: Complainant Stanley Murray appeared on his own behalf; no appearance was made by or behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Genesis Concrete Construction, LLC (Respondent), is the holder of License Number 329964 issued by the Registrar of Contractors (Registrar).
2. On or about September 16, 2022, Stanley David Murray (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the concrete renovation by Respondent of a residence in Scottsdale, Arizona (“project”).
3. The Registrar performed an inspection of the project on October 24, 2022. Thereafter, the Registrar issued a Directive, dated October 27, 2022, requiring Respondent to correct the alleged deficiency on the project by completing the following item by November 15, 2022, by appropriate means:
Compliance Item # 1: Concrete work was not up to code, defective, requiring me to replace entire patio at additional expense.
Investigator’s Observation: Verified
The complainant explained that the concrete had replaced brick pavers and the concrete was not to code because the T1-11 siding was in contact with the concrete and there were no footing for the room addition. The respondent told me there was no footing because he had no idea the complainant planned on a room addition. The respondent told me he never saw any approved plans for a room addition. I saw the T1-11 siding was in contact with the concrete. The lower portion of the T1-11 siding was embedded in the concrete. The International Residential Code (IRC)
R317.1.2, Ground Contact, states, in part, “All wood in contact with the ground, embedded in concrete in direct contact with the ground or embedded in concrete exposed to the weather that supports permanent structures for human occupancy shall be approved pressure-preservative treated wood suitable for ground contact use...”
The respondent should correct the Condition of the T1-11 siding contacting the concrete by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
I asked the complainant if he had provided the respondent with approved plans for the room addition. The complainant stated he had not. Both parties agreed that there was no written contract and neither party retained a copy of the estimate.
No further action is required for the lack of footings.
Reference Picture(s) 2-5
Governing Rule: Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure
from or disregard of: (b) A building code.
Governing Rule: A.R.S. § 32-1154 (A)(3) – R4-9-108(b): Violation of any
rule adopted by the Registrar; Namely R4-9-108(b): A contractor shall
perform work in accordance with any applicable building codes and
professional industry standards...
4. Upon being informed that no corrective action was performed prior to the Directive deadline, the Registrar then issued a Citation to Respondent, dated December 21, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2)(b) (departure from or disregard of plans or specifications or any building code standards);
b. 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;
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated January 23, 2023, that set a hearing for February 27, 2023, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about January 23, 2023, to its addresses of record.
6. A hearing was held on February 27, 2023, at 1:00 P.M. Complainant Stanley Murray testified on his own behalf. Mark Nipp, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 6. No exhibits were submitted on behalf of Respondent.
7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Respondent further did not request at any time that the hearing be continued.
8. 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 observed the siding in direct contact and imbedded with the concrete slab poured by Respondent.
9. Complainant testified that it was his intent to replace pavers with a concrete patio for an eventual room addition. He stated the contract specifically mentions a room addition, even though Respondent had earlier alleged he was unaware of the room addition. (Complainant’s Exhibit 1). He further testified that Respondent’s work was performed in November 2020, not November 2021 as stated in his Complaint.
10. Administrative notice is taken of Respondent’s prior license record. Such record reflects that Respondent’s License No. 277614 was first issued on July 28,, 2020, renewed through July 31, 2022, and suspended for non-renewal on January 29, 2023. Such prior license record does not reflect any previous disciplinary actions.
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. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its addresses of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. The suspended status of Respondent’s license does not deprive Complainant of his right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
6. 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.....
7. 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(B) which requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”
8. 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 Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(2)(b). No evidence was presented to rebut the evidence supporting the finding of a building code violation.
9. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work failed to perform work in accordance with any applicable building codes and professional industry standards and did not comply with Arizona Administrative Code Rule 4-9-108(b), and consequently Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(3). No evidence was presented to rebut the evidence supporting the finding of a building code violation.
10. 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 Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(22). The evidence was uncontradicted that Respondent failed to perform any corrective work and there was no evidence presented for a valid justification for failing to do so.
11. 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 § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Genesis Concrete Construction, LLC’s, License Number 329964 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 $500.00 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 17, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Stanley David Murray
[email redacted]
Genesis Concrete Construction LLC
[email redacted]
By: OAH Staff