ALJDEC - Licensing

2023A-08901-CHC-ROC · Registrar of Contractors · 2024-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Oxley Construction LLC,

COMPLAINANT,

v.

Masonry and More LLC,

License No. ROC 199192,

RESPONDENT,

No. 2023A-08901-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 31, 2024.

APPEARANCES: Attorney Travis Hill represented Gary Oxley and Oxley Construction LLC. Attorney T'shura-Ann Elias represented Jeff Gilbert and Masonry and More LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC hearing packet; Complainant’s Exhibits 1 through 24; Respondent’s Exhibits R-1 through R-35.

_____________________________________________________________________

FINDINGS OF FACT

Masonry and More LLC (Respondent or M&M) is the holder of License No. 199192, Specialty Dual CR-31 Masonry, issued by the Arizona Registrar of Contractors (Registrar) on August 29, 2004.

Oxley Construction LLC (Complainant or Oxley) is the holder of License No. 162325, B General Residential Contractor, issued by the Registrar on February 6, 2001.

BACKGROUND

In January 2021, William Cook (Homeowner) and Complainant contracted for construction of retaining wall areas of various lengths on Homeowner’s property. 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 Homeowner’s Licensed Complaint Form (Complaint-HO) containing one item: a retaining wall 76 feet by 8 feet was not straight anymore, i.e., was bowing. The Complaint-HO 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 Complainant against its subcontractor, Masonry & More LLC (M&M), alleging the same issue, the bowed retaining wall at Homeowner’s home.

On August 16, 2023, ROC Investigator Cliff Corlett conducted a jobsite inspection regarding both Complaint-HO and Complaint-R.

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, both Oxley and M&M indicated to Investigator Corlett that other work by other contractors and work by Homeowner had been done on the site, including the addition of the pool and patio pavers, and both opined that such other work was likely responsible for the wall issue. Drainage concerns were also discussed and Investigator Corlett found that water would pond on the patio near where trenching had been done.

On or about September 25, 2023, both cases were 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.

Subsequently, on October 23, 2023, Investigator Corlett issued a Written Directive (Directive) directing that corrective action by Oxley was necessary. Investigator Corlett indicated therein that Homeowner had submitted additional documentation and had requested reconsideration of the case closure. Investigator Corlett noted the following:

After review of additional documentation re: [Oxley] adding additional courses of CMU’s and additional fill after wall was inspected, the [Complaint-HO] 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 Oxley’s compliance with the Directive.

On October 23, 2023, Oxley requested that its Complaint-R against M&M also 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. The Directive-R indicates “Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00.” The Directive-R stated:

Jobsite General Notes: Complainant (William Cook, case 2023-08258) has submitted additional documentation and request to reconsider case dismissal. After review of additional documentation re: Respondent adding additional courses of CMU’s and additional fill after wall was inspected, that Complaint and this case 2023-08901, is reopened and Written Directives have been issued.

See attached: “Justification to reopen complaint and issue a directive.”

The Directive-R further stated as follows:

DIRECTIVE REQUIREMENTS

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

Compliance Item: - 1 -Retaining wall is bowing. Not straight anymore.

Investigator’s Observation: Rear retaining walls do appear to have some bowing/movement.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

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.

The Registrar set November 24, 2023 as the deadline for M&M’s compliance with the Directive-R.

On January 8, 2024, Homeowner sent Investigator Corlett an email and indicated that neither Oxley nor M&M 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-R. Investigator Corlett forwarded the case to ROC legal Department for issuance of a Citation.

REGISTRAR HEARING PROCESS

On January 17, 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 29, 2024, M&M filed its Answer, indicating that the wall had been inspected four times and had been signed off on by Strytek and then the City. M&M also indicated that it had not done the backfill in/at the [now patio] area that meets the retaining wall and, further, that Homeowner had completed that same area with pavers but without installing drain lines or drain boxes.

The Registrar noticed the matter for hearing.

At hearing, Investigator Corlett indicated that, at the time of the job site inspection, he had seen sketches but had not been provided any engineered plans; he did not know who dug for the footings. Investigator Corlett opined that Strytek would not have been able to do an inspection and sign off on the footings without having seen the permit and engineered plans. Investigator Corlett noted that after the final Strytek/City inspection, the pool was completed, the three block courses were added, and the pavers were laid.

Investigator Corlett 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 based on the wall-bowing he observed and the Strytek documents, the circumstances called for the contractors (i.e., Oxley and M&M) to determine the cause and correct the workmanship issue.

Based on the hearing record:

The Homeowner’s contract with Oxley and the [Edwards] plans for the wall called for a 30’ [wall] section to be 8’ high and a 40’ [wall] section to be 6’ high.

Because its regular masonry contractor was retiring, Oxley reached out to M&M to build the walls. M&M pulled the permit using the Edwards design plans. M&M dug the footings for the retaining wall, and one of M&M’s employees laid the rebar.

M&M engaged Strytek Engineering LLC (Strytek) to perform the special inspections regarding the footings and the wall.

Strytek’s inspector William Barr credibly testified that he saw some plans when at the site but then indicated he never saw the permit or the referenced “Edwards” design plans (which were shown to him at hearing as Respondent’s Exhibit R-6). Mr. Barr credibly testified that, while at the site, he was told the walls were 6’ high and, because he saw the rebar footings laid at 3’ wide, he wrote up the inspection report for a 6’ high wall. Mr. Barr also clarified that an 8’ high wall would require the use of #5 rebar at 4’ wide and the use of 12” blocks rather than 8” blocks.

Strytek’s April 6, 2021 inspection found, as to a 30’ [wall] section, the footings were prepared for a 6’ high wall with #4 rebar laid 3’ wide at 12” deep and #4 verticals every 8”. Additionally, as to a 40’ [wall] section, the inspection found the footings for a 5’ high wall with #4 rebar laid at 21⁄4’ wide at 12” deep and #4 verticals every 12”. The inspection report notes that those footing dimensions and rebar met City specifications.

Mr. Barr, who performed the special inspections in this matter, testified credibly that the subject photograph demonstrated #4 rebar laid 3’ wide and at 12” depth.

Strytek’s April 13, 2021 inspection noted those same footing/rebar findings as were observed on April 6, 2021 and further indicated “all reinforcement installed per city standard revised version dated 11/18/2020.”

Oxley paid M&M on its invoices. M&M invoices describe the various wall portions built over time:

By 4-15-21: Approximately 30’ of 6’ retaining wall; and Approximately 35’ of 4’ to 2’ retaining wall.

By 8-17-2021: Approximately 28’ of 6’ to 8’ retaining wall; and Approximately 68’ of 1’ to 8’ high retaining wall.

By 3-10-2022: Raise wall 3 courses.

By 4-8-2022: Approximately 8’ of 7’ high retaining wall.

Some of the wall portions were not complete while the pool was being built and finished, and were completed after the pool was finished. Oxley indicated that the final addition of 2 of the 3 courses was part of the wall design and was always planned to be done [to all the walls] to make that portion of the wall an 8’ retaining wall. Oxley further indicated that, due to the pool being completed at 6” higher than anticipated, the 3rd course had to be added to bring the top of that wall to above grade of the pool/patio; Oxley’s position is that the 3rd course is, therefore, not considered to be “retaining.”

Homeowner agreed to a change order, dated February 28, 2022, to “add an additional [course] to the rear walls” due to the pool elevation. Homeowner testified that that additional course was just to bring the wall to above grade and, thus, was not “retaining.”

On or about July 31, 2022, after a monsoon, a pallet of pavers was photographed as being collapsed against the subject retaining wall. Oxley indicated that, at that time, it had already completed the backfill and final yard grade work at that “East” wall area.

In contradiction of Mr. Barr, Mr. Gilbert testified that the rebar footing was correctly done and that, as seen in the referenced photograph, was installed 4’ in width and 24” deep. Mr. Gilbert testified that he had no reason to believe the footings were incorrectly done. Mr. Gilbert testified that he did not have any discussions with Mr. Barr but he disagreed that Mr. Barr was told the wall was 6’ high. Mr. Gilbert stated that he did not know who added courses to the wall and that Oxley had never informed M&M about more height to the walls.

At hearing, Respondent argued that Complainant has not demonstrated that M&M is responsible for the issue with the wall and further argued that the footings were not incorrectly installed. Respondent argued that without further testing, it cannot be determined what caused the wall bowing and, further, that the pool construction, the additional backfill, the pavers being added and a lack of drainage all could be contributing factors to the wall bowing. Respondent argued that M&M did not perform the pool construction, do the backfill, install the pavers, or do any drainage work. Respondent argued that any responsibility for the wall bowing falls on Oxley. Respondent argued that discipline is not warranted against its license in this case.

At hearing, Complainant argued that the ROC case is solely about M&M’s compliance with the Directive-R and, just as Investigator Corlett did not determine causation and assign responsibility therefor, the Tribunal does not determine responsibility as to causation. Complainant argued that it was brought into the ROC matter regarding a now-failing wall and that now-failing wall was built by M&M. Complainant argued that the now-failing wall was not built to the plans and specifications, was built on rebar footings that were 3’ wide not 4’ wide and, thus the footings and wall has not met the City standards for an 8’ high wall.

Based on the hearing record, M&M failed to complete the corrective action as determined was required by Investigator Corlett, pursuant to the Directive-R, by the stated completion date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).

Based on the hearing record, the subject retaining wall, as built by M&M, is not in compliance with City building specifications for an 8’ high wall. 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 the Directive-R deadline in 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.

10. Regarding the wall, Investigator Corlett determined that, as observed, the subject retaining wall was in need of correction. Based on the hearing record, the Administrative Law Judge concludes that the retaining walls, as built, are not in compliance with City building specifications for an 8’high wall. Therefore, Respondent is in violation of ARIZ. REV. STAT. § 32-1154(A)(2)(b).”

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 199192 as follows: a one-business-day suspension on the effective date of the Registrar’s Order in this matter and a civil penalty of $500.00 pursuant to Ariz. Rev. Stat § 32-1154(E).

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, July 16, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Legal Department

[email redacted]

[email redacted]

Travis B. Hill, Esq.

O’connor & Dyet, PC

[email redacted]

T'shura-Ann Ann Elias, Esq.

Lundberg & Elias

[email redacted]

By: OAH Staff