ALJDEC - Licensing
2023A-08258-CHC-ROC · Registrar of Contractors · 2024-05-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
William Cook,
COMPLAINANT,
v.
Oxley Construction LLC,
DBA: G Oxley Construction,
License No. ROC 162325,
RESPONDENT.
No. 2023A-08258-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 8, 2024
APPEARANCES: William Cook represented himself. Attorney Travis Hill represented Gary Oxley and Oxley Construction LLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC hearing packet; Complainant’s Exhibits 1 through 24.
_____________________________________________________________________
FINDINGS OF FACT
Oxley Construction LLC (Respondent) is the holder of License No. 162325, B General Residential Contractor, issued by the Arizona Registrar of Contractors (Registrar) on February 6, 2001.
In January 2021, William Cook (Complainant) and Respondent contracted for construction of retaining wall areas of various lengths. The contract indicates:
Construct havasu brown spit retaining walls: lower wall – 65’ long x 4.5’ high avg[;] upper east wall: 30’ long x 8’ high, 40’ long x 6’ high[;] upper west wall 35’ long x 6’ high avg., 10’ long x 2’ high avg.
Incudes excavation and backfill.
On or about July 20, 2023, the Registrar received Complainant’s Licensed Complaint Form (Complaint) containing one item: a retaining wall 76 feet by 8 feet was not straight anymore, i.e., was bowing. The Complaint indicated that the work had started on March 15, 2021 and had ended on May 19, 2022.
On or about August 4, 2023, the Registrar received a Licensed Complaint form (Complaint-R) from Respondent against its subcontractor, Masonry & More LLC (M&M) alleging the same issue, the bowed retaining wall at Complainant’s home.
On August 16, 2023, ROC Investigator Cliff Corlett conducted a jobsite inspection. Investigator Corlett viewed the bowed retaining wall which is located in the area behind the home; the area behind the home incudes patio areas covered with pavers and an infinity-edge swimming pool. At the jobsite inspection, Complainant opined that Respondent was responsible for the issue and Respondent opined that other work by other contractors and the homeowner had been done on the site, including the addition of the pool and patio pavers. Drainage concerns were discussed as Investigator Corlett found that water would pond on the patio near where trenching had been done.
On or about September 25, 2023, this case was closed due to other persons having performed work at, on, or near the wall, associated with the remaining construction that had completed the home and its patio.
However, subsequently, on October 23, 2023, Investigator Corlett issued a Written Directive (Directive) directing that corrective action by Respondent was necessary. Investigator Corlett noted therein that Complainant had submitted additional documentation and had requested reconsideration of the case closure. Investigator Corlett noted the following:
After review of additional documentation re: Respondent adding additional courses of CMU’s and additional fill after wall was inspected, the Complaint is reopened and a Written Directive issued.
The Directive stated as follows:
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: - Retaining wall is bowing. Not straight anymore. Wall size is 76' X 8'
Investigator’s Observation: Rear retaining walls do appear to have some bowing/movement.
RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.
The Registrar set November 24, 2023 as the deadline for Respondent’s compliance with the Directive.
On October 23, 2023, Respondent requested that Complaint-R be reopened.
On October 24, 2023, Investigator Corlett issued a Written Directive (Directive-R) to M&M directing that corrective action be taken to correct the bowing wall issue by appropriate means.
On January 8, 2024, Complainant sent Investigator Corlett an email stating there had been additional movement and the gaps between the pavers were larger; he provided photographs. Complainant indicated that neither Respondent [G. Oxley Construction (2023-08258)] nor the subcontractor [Masonry & More (2023-08901)] had made any corrections or repairs to the project.
On January 10, 2024, Investigator Corlett issued a Compliance letter, finding that Respondent was not in compliance with the Directive. Investigator Corlett forwarded the cases to ROC legal Department for issuance of a Citation.
On January 12, 2024, the Registrar issued a Citation in this matter, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(2)(b) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the departure from or disregard of “[a] building code ... in any material respect that is prejudicial to another.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”
On January 25, 2024, Respondent filed its Answer, denying the charges and arguing as follows:
Complainants assumed exclusive responsibility for installation of patio pavers and the pool deck. Respondent states Complainants improperly installed the same in violation of building codes (e.g., weep screed) and that Complainants failed to provide for adequate and proper drainage. As a result, Complainants altered and modified the drainage plan and, due to such alterations, runoff drains to a location against the wall precisely where the subject of complaint has occurred. Respondent affirmatively states that it is Complainants’ failure to properly install the patio pavers, pool deck, and to assure proper drainage that is the cause of the subject complaint. Respondent further affirmatively states that Complainants expressly released Respondent from any liability for work that was performed by Complainants. The Release includes Complainants’ work and exclusive responsibility for the proper construction of the patio, pool deck, and proper drainage relating thereto.
The Registrar noticed the matter for hearing.
At hearing, Investigator Corlett indicated that, at the time of the job site inspection, he had been provided the Strytek Engineering (Strytek) inspections and certification but that he had not been provided any engineered plans, only a sketch. He further testified that his role was not to determine the cause of the wall-bowing issue but to determine whether the work (i.e., the finished wall) met construction standards. In this case, Investigator Corlett indicated that with the wall-bowing he observed and the Strytek documents, the circumstances called for Respondent to determine the cause and correct the workmanship issue.
At hearing, Complainant testified that he did not know who “dug” for the footings, but he knew that M& M initially built the wall and, further, that M&M subsequently built up the wall but he did not know who did the backfilling. Complainant testified that the pool was finished in August 2021 and that he noticed the bowing around Thanksgiving 2022. At that time, Complainant proceeded to obtain the available City information regarding the walls: the original retaining wall plans from Edwards Masonry (Edwards) calling for an 8’ retaining wall height and the Strytek inspections, on which he discovered the inspections documenting the construction of support for 6’ high wall and the certification of reinforcements in compliance with the City specifications [for a 6’ high wall].
Complainant’s position is that Respondent should have known the constructed footings would not be sufficient support for the 8’ retaining walls when M&M added more block courses. Complainant’s argument is simple, that he did not receive the walls that he paid for because the walls were not appropriately constructed and he is entitled to have the walls constructed appropriately per contract and the applicable City codes.
At hearing, Respondent argued that the Strytek inspections were being done through M&M and that Respondent had no knowledge of the inspections at that time and, further, did not know about the Strytek inspections until Complainant discovered them. Respondent indicated that it had to wait to finish the walls until after the pool was completed and, somewhat alternatively, Respondent argued that two additional block courses were intended [inferring, always intended] to be done but that the third course raised the wall to about 12” above the grade level and, thus, should not be considered to be “retaining.”
At hearing, Respondent’s position was that M&M knew the wall was to be 8’ high because M&M had used the Edwards plans to obtain the permit. Respondent argued that the Strytek documents demonstrate that M&M constructed footings that were not appropriate for an 8’ wall which was the reason Respondent was pursuing M&M in Complaint-R. Respondent argued that this was a unique situation in that Respondent and Complainant were “on the same page” with respect to M&M’s responsibility regarding M&M’s construction of the footings. While Respondent acknowledged that, generally, it could be responsible for construction actions in such civil matters, Respondent argued that it has rights of indemnification and full recourse against the subcontractor when Respondent has not done anything wrong. Respondent argued that discipline is not warranted against its license in this case.
Based on the hearing record, Respondent failed to complete the corrective action as determined was required by Investigator Corlett, pursuant to the Directive, by the stated completion date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).
Based on the hearing record, the subject retaining walls, as built, are not in compliance with City building specifications. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this case is the only case open regarding any issues with Respondent. The Registrar’s record does not show any discipline on Respondent’s license as of the date of this recommended decision.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
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 section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
5. 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.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. 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).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding the Complaint, Investigator Corlett determined that, as observed, the subject retaining wall was in need of correction which remained unaddressed by January 2024. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issue existed with regard to the retaining wall and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 162325 as follows: a one-business-day suspension on the effective date of the Registrar’s Order in this matter.
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 Administrative Law Judge Decision. If the licensee accepts the Administrative Law Judge Decision, the Administrative Law Judge 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, May 28, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Legal Department
[email redacted]
Cliff Corlett
Registrar Investigator
[email redacted]
William Cook
[email redacted]
Travis B. Hill, Esq.
O’connor & Dyet, PC
[email redacted]
By: OAH Staff