ALJDEC

99F-M1484-ROC · Registrar of Contractors · 2000-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2000 APPEARANCES: Complainant, Hoop Bramoff, and his wife, Lisa Bramoff, were present. Steve Garrett of Western Technologies was present on behalf of Complainant. Respondent, Rodney Matthews was present with his Secretary, Evelyn Gollahon. Registrar of Contractors Inspector, Van Bagley was present. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Order to the Director of the Arizona Registrar of Contractors. FINDINGS OF FACT Complainant, Hoop Bramoff, and his wife, entered into a contract with Respondent, Rodney Matthews, dba Matthews Concrete, on or about April 27, 1999. The contract called for Respondent to excavate a basement, construct the footings, stem and floor slab, as well as the basement walls, piers, and stair pads, at 60A Bob’s Bend, Strawberry, Arizona. The price of the contract was $16,350, to be paid $6,000 upon completion of the stem, $6,000 upon completion of the slab, $4,000 upon completion of the basement walls, and $350 upon completion of the job. Respondent was paid the first two draws. Complainant was concerned about the work that had been done, so he requested a courtesy inspection from Gila County. On or about May 25, 1999, a jobsite inspection was conducted by Julie Scott, Gila County Building Inspector. Ms. Scott’s Inspection Report indicates:

”Steel was removed from engineered wall at 4’ level - left 1 #4 rebar- horizontal in. Improper amount of steel in int[erior] pads. Improper installation of French drain. Height of ext[erior] piers to N.E. won’t allow for proper wood to earth distance. Mortar is crumbling. Some joints are not mortared at all, which are above the grouted portion of wall. Some cracking in floor. Recommended owner contact Registrar of Contractor’s office.” On or about May 27, 1999, the building was red-tagged by Gila County. Complainant filed a Complaint with the Registrar of Contractors on or about June 11, 1999. On or about July 9, 1999, Inspector Bagley conducted a jobsite inspection. Present at the inspection, were Mr. and Mrs. Bramoff and Mr. Matthews. On July 20, 1999, Inspector Bagley issued a Corrective Work Order, indicating that Respondent was to make corrections as follows by appropriate means:

f. Obtain engineering to correct the missing rebar in the retaining wall; g. Obtain engineering to correct the missing rebar in the column pads which are incorporated into the floor slab; h. Repair voids in the mortar joints of the block wall; i. Repair all items on Gila County building inspector’s Inspection Report dated May 25, 1999.

On August 27, 1999, Inspector Bagley issued a notice to Respondent, advising Mr. Matthews that he currently possesses a class C-9 concrete license, and that Mr. Matthews has been performing work beyond the scope of his license, work which would be covered under a C-31 masonry license. On August 27, 1999, Inspector Bagley issued a second Corrective Work Order, instructing Mr. Matthews to hire an appropriately licensed C-31, masonry contractor to perform the corrective work concerning the block walls, set forth in the original Corrective Work Order, dated July 20, 1999. Mr. Matthews admitted that he had been performing work beyond the scope of his license when he laid the block. Mr. Matthews testified that he performed this work for Complainant because he and Complainant were friends and there are not many block layers in Strawberry, Arizona. Complainant hired Western Technologies, Inc. (“Western”), an engineering firm, to conduct an inspection of the property and issue a report. On October 18, 1999, Western performed a site observation, which included a visual observation and the use of a pacometer, a device used to detect metal. Western issued its report on October 29, 1999, indicating that the following items were found not to be in general accordance with the approved plans and specifications, Universal Building Code standards, and Gila County standards:

“a. In several areas on the north and south sides of the structure, mortar joints were found to be oversized… b. In several areas of the north and south walls, mortar joints were found to be undersized or non-existent… c. Several areas in the north and south walls were found to have incomplete head and bed joints… d. Mortar projections for hollow masonry units in numerous areas on the north and south walls are not required maximum size… e. Bond beam reinforcing steel 8 foot lift. South wall not proper 20 inch lap, as per plan specification… f. Bond beam reinforcing not continuous, 4 foot lift in south wall… g. Joint horizontal reinforcing steel not as required 16 inches on- center, #9 wire in both north and south walls as required by Gila County Standards… h. Vertical reinforcing steel not 48 inches on-center as required by plan specifications… i. Lag bolts for wall attachment required by plan specifications, missing on west side… j. Pier footings on east and west sides of structure are not required dimensions of 20 inches x 20 inches x 8 inches as per plan specifications… k. Split faced block not used as per plan specifications on both exterior north and south walls…” Respondent hired Shephard-Wesnitzer, Inc., consulting engineers, to conduct an analysis of the work performed by Respondent. Respondent’s expert did not perform an on site inspection. Shephard-Wesnitzer’s report based its analysis on information supplied by Respondent. The undersigned Administrative Law Judge finds that this evidence should be accorded little weight, if any. Respondent hired Mile High Construction to remove and replace all faulty mortar joints as required by the original Corrective Work Order, however, Mile High Construction did not perform any of the corrective work. A pre-hearing inspection was conducted by Inspector Bagley on February 4, 2000. Inspector Bagley testified that Respondent did not comply with either of the Corrective Work Orders. The undersigned Administrative Law Judge finds that restitution may be an appropriate remedy based upon Complainant having paid $12,000 to Respondent and not having received the benefit of the bargain. It is questionable, at best, whether or not the structure as constructed is usable. Even if it were not found to require demolition, it would require extensive and significant remedial work. CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] A contractor’s license may be suspended or revoked for “[v]iolation of any rule adopted by the registrar”.[4] The Registrar of Contractors has mandated that all work shall be performed in a professional and workmanlike manner. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32- 1154(A)(3), namely R4-9-108, as set forth in Findings of Fact ## 2, 3, 5, and 9. A contractor’s license may be suspended or revoked for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”.[5] The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32-1154(A)(7), as set forth in Findings of Fact ## 2, 3, 5, 6, 8, 9, 11, and 12. It was wrongful of Respondent to not perform in a professional and workmanlike manner and further, not to cause a properly licensed contractor to accomplish the necessary remedial work. Complainant has suffered substantial financial injury, in that he has partially paid Respondent for the professional and workmanlike construction of a basement and did not receive such. Further, Respondent knowingly contracted beyond the scope of his license, which is a wrongful act. A contractor’s license may be suspended or revoked for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time.[6] The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32-1154(A)(23), as set forth in Findings of Fact ## 11 and 12. The Registrar may order a “restitutionary remedy...as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing”...laws set forth in A.R.S. §32- 1154A (1) through (24), inclusive. An administrative award of damages is not an unconstitutional exercise of administrative authority where due process procedural rights are protected, where the authority to prohibit conduct has been well defined as in A.R.S. §32-1154, and where judicial review is available as provided in A.R.S. §12-901, et seq.[7] The Registrar of Contractors’ authority in matters such as presented herein, includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Respondent to Complainant of $12,000.00 as full restitution for the cost to construct the basement. Imposing such a condition is more preferable than merely imposing a disciplinary action against Respondent’s license without providing a condition to reduce or eliminate same. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays to Complainant the amount of $12,000 (the sum of the first two draws the Respondent received from Complainant), on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-09 license shall be placed on active suspension for a period of 10 days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $250 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. (32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’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 payment of any outstanding prior civil penalty is tendered. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that any restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond or cash deposit set forth in A.R.S. §32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending. Done this day, March 17, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of March, 2000, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, Arizona 85007

By ___________________________

----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). [2] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [3] Black’s Law Dictionary, 1182 (6th ed. 1990). [4] A.R.S. §32-1154(A)(3). [5] A.R.S. §32-1154(A)(7). [6] A.R.S. §32-1154(A)(23) [7] Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2nd 430 (App. 1990).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826