ALJDEC - Licensing

2024A-03163-CHC-ROC · Registrar of Contractors · 2024-09-03

Raymond Sharp

Rayden Enterprises Inc

COMPLAINANT,

D C Concrete Company

License No. ROC 073753,

RESPONDENT.

No. 2024A-03163-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 14, 2024

APPEARANCES: Raymond Sharp represented Rayden Enterprises, Inc. (Complainant). Corey Larson, Esq. represented D C Concrete Company (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: The Registrar’s Administrative Record (Exhibit A.) Complainant’s Exhibits 13, 24, 25, and 27. Respondent’s Exhibit A.

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FINDINGS OF FACT

On July 3, 2024, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing August 14, 2024.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

Respondent holds license No. 073753 issued by Registrar.

Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3),(12) and (A)(22); 32-1158; Ariz. Admin. Code R4-9-108(A).

On or about November 10, 2023, Complainant and Respondent entered into a construction contract wherein Respondent agreed to perform concrete work for a new commercial building, for the amount of $73,785.

Respondent did not provide Complainant with a written contract that

advised Complainant of his right to file a complaint with the Registrar against Respondent for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1162(A).

Complainant paid Respondent $44,580 for the construction work.

On or about November 20, 2023, Respondent started work.

On or about January 19, 2024, Respondent stopped work.

On or about March 18, 2024, Complainant filed a complaint with the Registrar alleging poor workmanship and abandonment on the part of Respondent.

The Registrar assigned the complaint to one of its investigators, Mike Springer (Investigator Springer.)

On or about May 13, 2024, Investigator Springer conducted a job-site inspection.

On or about May 15, 2024, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:

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After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 31st, 2024.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Floor surface elevation waves/varies over One-Half (1/2”) within ten feet (10') in numerous areas.

Investigator’s Observation: Floor of entire building has deviations from 1/2" to over an 1" in areas using a ten foot straight edge and level. Maximum allowed is 1/4". Complainant had a third party flatness test completed which shows many variations in the floor.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 2 - Numerous Cracks in excess of three-thirty-seconds (3/32”) width . Investigator’s Observation: Cracks were observed that were in excess of 3/32". Condition exits throughout.

Compliance Item: 3 - Excessive Compound Cracks in excess of IBC Building Code required standards.

Investigator’s Observation: Several compound cracks were observed in excess of 1/16" Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 4 - Cracks are crumbling across the breaks.

Investigator’s Observation: Numerous cracks with crumbling edges, pieces loose. This condition exists throughout.

Compliance Item: 5 - Expansion /Control Joints exceed the maximum distance required by IBC Building Code.

Investigator’s Observation: Control joints are over 27'x15'. Complainant states they were to be 10'x10'. Design drawings state "Control joints need to be reviewed in field by architect w/concrete contractor." Recommended industry standard spacing would be minimum of 24 times the slab thickness. This would amount to 10'x10' .for a 5' slab. Info from Portland Cement Association. I did not receive any information that Respondent had confirmed with the architect regarding spacing

Compliance Item: 6 - Compound cracks in excess of one-sixteenth (1/16”) in width. Investigator’s Observation: Several areas with compound cracking in excess of 1/16". Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 7 - Half-moon cracking at entry / exit doors

Investigator’s Observation: Crack at S/W door exceeds 1/16" and has pieces crumbing along the crack.

Compliance Item: 8 - Crumbling, Spalling and or pitting of concrete at cracks. Investigator’s Observation: Most cracks are showing crumbling, crazing and spalling along cracks.

Compliance Item: 9 - Ponding / standing water due to Floor surface elevation in excess of IBC Building Code.

Investigator’s Observation: Water test was not needed, areas exceed level standards and would obviously hold water.

Compliance Item: 10 - Welded Wire Mesh for concrete reinforcement left on soil not installed per plans or IBC Building Code.

Investigator’s Observation: Third party report indicates wire is present in the bottom 3rd of the core sample. If wire is used, it should be installed correctly.

Compliance Item: 12 - Concrete surface dip n wave at door thresholds exceeds minimum level preventing sealing of weather and insects.

Investigator’s Observation: Man doors and rollup door thresholds are out of level which can potentially cause issues with threshold sealing.

Compliance Item: 14 - North rollup door - west column poor finish - trip hazard – unsightly

Investigator’s Observation: Column back pours are higher than surrounding main slab.

Compliance Item: 15 - Sidewalk has excessive block out creating noncompliant ADA entrance.

Investigator’s Observation: Blockout for water at sidewalk was blocked too big, leaving large open area in ADA sidewalk.

Compliance Item: 18 - Unfilled / Unfinished concrete around doors and fixtures.

Investigator’s Observation: Finish around man doors are poorly done. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 19 - Unplaced concrete around column block out's. Investigator’s Observation: One column on S/E side has not been poured.

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Respondent failed to make the required corrections under Directive

by the due date.

14. Respondent filed a timely answer to the Citation.

A hearing was held on August 14, 2024.

At hearing, Complainant testified on behalf of himself. Investigator

Springer testified regarding his investigation of the complaint. Respondent presented the testimony of Mike Young and Frankie Escalante.

17. Investigator Springer explained that he conducted a job-site inspection on August 14, 2024, prior to the set time for the commencement of the hearing. Investigator Springer found that Respondent had corrected all of the Directive items with the exception of complaint items 1, 9, and 12. At the pre-hearing job-site inspection, Investigator Springer found that Respondent removed the existing slab and installed a new slab of concrete. Investigator Springer stated that Complainant pointed out several areas that were out of level by more than a quarter inch per 12 feet using a level and a 12 foot extension. Investigator Springer stated that Complainant already had the shims measured out before his arrival. Investigator Springer stated that at the pre-hearing inspection, Complainant had several areas marked throughout the interior and exterior and he laid a 12 foot metal extension with a level on top of it and Springer brought him a small spacer which is a quarter inch and verified that the gaps under the extension exceeded the quarter inch with the exception of the first door that he inspected. Investigator did not use laser leveling nor did he used did he use an ASTM recognized standard.

18. Investigator Springer explained that at the pre-hearing job-site inspection, Complainant used a digital level that is also called a smart level. Investigator Springer admitted that he level needed to be calibrated from time to time and Complainant told Investigator Springer that he calibrated the level.

19. During cross examination by Respondent’s counsel, Investigator Springer stated that he would agree that a measurement by a private professional would be more accurate than what he used to measure whether the floor was out of level. Investigator Springer also admitted that the 12 foot extension was not tilted and then measured by the digital level to determine the degree of levelness. During cross examination, Investigator Springer agreed that if a professional engineering company hired by Complainant performed a floor levelness survey and prepared a report, it would be more accurate than using a spacer.

20. Investigator Springer opined that the floor would cause ponding if water were present, however, Investigator Springer did not observe any ponding. Investigator Springer also agreed that the floor was not constructed to divert water in any particular direction.

21. Mike Young is the Chief Financial Officer for Respondent. Mr. Young has worked in construction as a manager and superintendent for approximately 20 years.

Mr. Young explained that Respondent removed and replaced the original slab that it poured, more than once. Mr. Young explained that Respondent verified through a laser level that the slab complied with the requirements of the Directive.

22. Frankie Escalante also testified that the slab was examined by a laser level and the slab complied with the Directive requirements. Ms. Escalante explained that he separated the pours by a day in between each pour. Mr. Escalante opined that the reports that Complainant had prepared by professional engineers in Exhibits 24 and 25 show that the slab complied with the Directive requirements.

23. Complainant asserted that the slab did not comply with minimum workmanship standards. Complainant also represented that the flatness tests performed by Terracon engineering company in exhibits 24 and 25 show that the slab was not level and failed to meet minimum workmanship standards. The author of the reports in exhibits 24 and 25 was not present at the hearing to offer testimony regarding the reports.

24. Terracon conducted flatness tests as shown in its reports in exhibits 24 and 25. The dates of those tests were July 23, 2024 and July 31, 2024 respectively. Both report include the following statement, “Compliance Statement: Based on our observations, construction activities at the above referenced locations appeared to be completed in general accordance with the project plans and specifications.” Complainant contended that the statement is a general. However, Complainant contended that he graphs provided in the reports show that the floor has deviations that exceed 1⁄4 inch per 12 feet.

25. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on September 3, 2024, Respondent’s license was first issued on December 29, 1987, and is active. Such prior License record also shows there is only one open complaint against Respondent’s license. Such prior License record further shows that Respondent’s license has never been subject to discipline.

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. Arizona Administrative 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. section 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. section 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. section 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).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

9. The preponderance of the evidence shows that Respondent’s work failed to meet minimum workmanship standards, which is a violation of A.A.C. R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

10. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

11. Construction is not a perfect art, however, and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked.

12. Upon consideration of the evidence presented at the hearing, the Administrative Law Judge concludes that the record is insufficient to establish that Respondent’s corrective work failed to meet minimum workmanship standards. Although Investigator Springer found at the pre-hearing inspection that the floor was out of level, Investigator Springer agreed that a report conducted by an engineering company regarding the flatness of the slab would be more accurate than the test that he implemented. Furthermore, Respondent provided credible testimonial evidence that laser tests were performed that showed that the floor was level and in compliance with minimum workmanship standards. The preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

order

Based on the foregoing, it is ordered that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(A).

If Respondent fails to provide proof that it has so revised its form contracts, it is ordered that Respondent’s license be suspended for three days.

In all other respects, the complaint is dismissed.

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, September 3, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Cory B Larson Esq.

[email redacted]

Raymond Sharp

Rayden Enterprises Inc.

[email redacted]

By: OAH Staff