ALJDEC decisions subject to certification as final

2025A-02734-CHC-ROC · Registrar of Contractors · 2025-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Perry Brann,

COMPLAINANT

Mason Scott Marquez

DBA: CCM Constructors,

License No. ROC 352222,

RESPONDENT

No. 2025A-02734-CHC-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: August 14, 2025

APPEARANCES:

Complainant: D. Jeffrey Craven, Attorney

Perry Ty Brann, Complainant

Stephanie Lewis, witness

Respondent: Mason Scott Marquez

Registrar of Contractors: Cliff Corlett, Investigator

ADMINISTRATIVE LAW JUDGE: Nedra-Su Kawasaki

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.

Complainant’s Exhibits 2-24.

Respondent’s Exhibits 1-4.

_____________________________________________________________________

FINDINGS OF FACT

CCM Constructors (Respondent) was the holder of License No. 352222 issued by the Arizona Registrar of Contractors (Registrar) on May 15, 2024.

On or about October 7, 2024, and November 13, 2024, Perry Brann (Complainant) entered into contracts with Respondent for, among other things, installation of a sunken seating area, two retaining walls, and three additional courses of block to an existing wall.

On or about March 18, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator Cliff Corlett, who issued a Jobsite Inspection Notice on March 28, 2025, scheduling an inspection for April 18, 2025.

Investigator Corlett conducted a jobsite inspection on April 18, 2025, and Respondent was present. Following the inspection, Investigator Corlett issued a Written Directive From the Registrar to Respondent on May 6, 2025 that provided as follows:

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

Complaint Item: 1 - Seating area concrete finish is unacceptable and not according to contract.

Investigator’s Observation: ROC OBSERVATIONS: Concrete seating finish is rough, pitted and incomplete. Complainant stated that seating area concrete seat finish was to be a smooth, hard trowel finish. (**NOTE **ROC could not find a finish schedule in the contract documents submitted with the complaint nor in the detail sheets the complainant provided at the onsite inspection. CONCRETE FINISH IS UNACEPTABLE. RESPONDENT SHOULD CORRECT THE FINISH 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. A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship.

Complaint Item: 2 - Concrete was not vibrated, and multiple air pockets are visible on surface.

Complaint Item: 3 - No compaction/complete backfill of area exposing house foundation.

Investigator’s Observation: This project is a work in progress. RESPONDENT SHOULD PROPERLY BACKFILL AND COMPACT ANY SOILS DISTURBED BY HIS EXCAVATIONS AND CONSTRUCTION ACTIVITIES AT THE PROPER COURSE OF CONSTRUCTION. 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. A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship.

Complaint Item: 5 - Contractor did not follow plans and followed his own personal concept re: size and shape.

Investigator’s Observation: The seating pit detail received at onsite inspection shows a 16'6" x 16'6" sunken seating area with the stairs in the front right corner. The Respondent structure is approximately 19' 3” x 14' 6". RESPONDENT SHOULD CONSTRUCT SUNKEN SEATING AREA PER PLAN.

Complaint Item: 6 - Contractor admitted that he "Lost the load" on concrete and that it wasn't acceptable, and he would tear out and redo. Investigator’s Observation: ROC OBSERVATIONS: Concrete seating finish is rough, pitted and incomplete. Complainant stated that seating area concrete seat finish was to be a smooth, hard trowel finish. (**NOTE **ROC could not find a finish schedule in the contract documents submitted with the complaint nor in the detail sheets the complainant provided at the onsite inspection. CONCRETE FINISH IS UNACEPTABLE. RESPONDENT SHOULD CORRECT THE FINISH BY APPROPRIATE METHODS.

Complaint Item: 10 - Added 3 courses of block on west property line wall. Investigator’s Observation: This item was discussed at the onsite meeting however it is not listed on the complaint form. The Complainant stated that there is a Correction Notice from Lake Havasu City however but have not provided a copy. RESPONDENT SHOULD COMPLY WITH ANY BUILDING DEPARTMENT CORRECTION NOTICE.

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. A.R.S. § 32-1154(A)(3) - R4-9-108(C) Building Codes Not Adopted by B.O.

The Written Directive required Respondent to notify Investigator Corlett of Respondent’s compliance with the directive prior to 5:00 p.m. on June 6, 2025.

On June 17, 2025, Complainant informed Investigator Corlett that no corrective work had been performed on the project; therefore, no compliance inspection was conducted.

On June 18, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on July 1, 2025. Respondent’s Answer asserted that prior to the complaint Respondent attempted to address Complainant’s concerns regarding the concrete finish; however, Respondent was refused access and instructed to remove all tools and equipment from the site. Following the Written Directive, access was constructively denied due to a previously existing ramp having been backfilled and utilities placed. Respondent contended that it was not willing to incur liability to reconstruct the ramp, lest any damage occur to the newly placed utilities. Finally, additional contractors had been brought in to correct work and had altered Respondent’s work such that it limited Respondent’s ability to correct.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On July 10, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for August 14, 2025.

The hearing was held via Google Meet on August 14, 2025.

Investigator Corlett testified in support of his jobsite inspection findings, the written directive, and the Citation. Investigator Corlett further testified that it was difficult to sort through the issue of whether Respondent deviated from plans as the plans provided at the jobsite inspection were not stamped city plans. He noted that complaint item 10 was added to the complaint at the time of the inspection, but he had not received/reviewed any formal document showing the City had not approved the added courses to the west wall. Investigator Corlett testified that he received numerous emails from both Complainant and Respondent during the compliance period regarding access issues. He further testified that although Complainant claimed there was access between the “pool” and the house in the front yard, Investigator Corlett did not believe it was reasonable access. On questioning regarding water supply lines being moved, Investigator Corlett stated that if Respondent had moved the lines, it would be outside the scope of his license; however, investigators are limited to inspecting what they can visualize and the lines were not exposed at the time of the inspection. Therefore, Investigator Corlett made no comment.

Complainant’s witness Stephanie Lewis testified that she had been in the pool industry for over 25 years and designed and created projects and plans for backyard construction. Ms. Lewis prepared the project plans at issue in this matter, complete with plumbing, electrical, and gas required for the project. On May 6, 2024, the plans were submitted to code compliance and engineering. Ms. Lewis testified as to the plans specifications and to the consequential issues/problems created by Respondent’s actions. Additionally, Ms. Lewis testified as to the safety issues created by Respondent’s work.

Complainant testified in support of the jobsite inspection findings. Complainant testified that Respondent was hired to construct the walls and “they would see how it goes” before deciding if Respondent would also construct the conversation pit. Complainant further testified that regarding the access issue, the width between the bay window of the house and the “pool” feature in the front yard was five feet and the width of the Bobcat vehicle, which Respondent needed for the destruction of the conversation pit, was four feet.

Respondent testified he agreed with Investigator Corlett’s jobsite findings regarding complaint items one, two, and six. Regarding complaint item three, Respondent argued that this item had not been completed at the time of inspection because the project was still in progress. Regarding complaint item five, Respondent argued that the architectural plans were not referenced in the contract because it was known there would be many change orders. Regarding complaint item ten, Respondent argued the courses were placed as requested and if the City said they needed to be removed, then Respondent would remove them. However, it was denied access after the jobsite inspection. On questioning, Respondent testified that the initial contract with Complainant signed on October 7, 2024 included only the work on all walls and the BBQ area. The seating area (conversation pit) was not included. An additional contract signed on November 13, 2024 was for the conversation pit. Respondent argued that the work on the walls changed the dimensions originally planned in the architectural schematic. Therefore, when work began on the conversation pit, the architectural plans could not be followed.

Administrative notice was taken of Respondent’s prior License record on September 2, 2025. According to that record, Respondent’s License No. 352222 was Active; and there was one open complaint (instant matter), no disciplined cases, and no resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

During the Directive period, homeowners cannot refuse access to a contractor and seek discipline against that contractor. Refusing access impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, homeowners are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means.

Complainants do not have the right to dictate how a contractor satisfies the Directive Compliance Items. When a complainant refuses to allow a contractor to take the appropriate corrective action, a complainant effectively denies the contractor a meaningful opportunity to correct their work. Denying a contractor the opportunity to correct their work constitutes a denial of access for the impacted Directive Compliance Items.

When a contract is ambiguous, the ambiguity is interpreted against the drafter. In this case, the contract was drafted by Respondent stating “installation of sunken seating area.” This is contrasted with the other work items that were highly detailed regarding materials to be used, percentages of slope, specific description of items so as to distinguish from others, etc. Thus, when Complainant provided an engineered schematic for the seating area which both parties admit was known and viewed by both parties prior to the contract being drafted and signed, the undersigned ALJ finds in favor of the Complainant as to the design specifications of the seating area (conversation pit). If plans changed, it was incumbent on Respondent to draft change orders to document such changes. Change orders protect both parties to a contract. They ensure that the service-providing contractor (in this case Respondent) has a record of work done and a documentary basis for payment; they also ensure the service-receiving contractor (in this case Complainant) consents to work being done and amount charged for the service.

The preponderance of the evidence did not establish that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A). Construction is not a perfect art, and a contractor must be afforded an opportunity to correct deficient work before the license is subject to discipline. Investigator Corlett and Respondent provided credible testimony that it was not a completed project at the time of the inspection and was still in progress. Therefore, the undersigned ALJ does not find Respondent failed to perform in a professional and workmanlike manner.

Despite Complainant’s testimony and evidence demonstrating that a Bobcat tractor had a foot of leeway to pass between Complainant’s house and the “pool”, Investigator Corlett and Respondent provided credible testimony that it remained unreasonable to expect Respondent to successfully transport the required materials through this space without damaging Complainant’s house in the process. Therefore, the preponderance of the evidence established that Complainant constructively denied Respondent access to the property and the opportunity to correct the issues. Accordingly, Respondent had a legal justification for its failure to take appropriate corrective action and was not in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar not impose discipline against Respondent’s license for the violations of A.R.S. § 32-1154(A)(3) and (22).

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.

-54864001

001

-137160-45720000Done this day, September 21, 2025.

/s/ Nedra-Su Kawasaki

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

[email redacted]

Perry Brann

[email redacted]

Mason Scott Marquez

DBA: CCM Constructors

[email redacted]

D. Jeffrey Craven Esq.

The Craven Firm, PLLC

[email redacted]

Cliff Corlett

Registrar of Contractors

[email redacted]

By: OAH Staff