ALJDEC

00F-0326-ROC · Registrar of Contractors · 2000-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2000; 9:15 A.M.; Phoenix, Arizona APPEARANCES: Complainants: Gregory A. Bass Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

In this matter, the Complainant Gregory R. Bass/Elite Auto seeks to show why the Arizona Registrar of Contractors (“Registrar”) should impose disciplinary sanctions on Respondent Valley Asphalt and Concrete, Inc. (“Valley Asphalt”), pursuant to Arizona Revised Statutes (“A.R.S.”) § 32- 1154, after the Registrar determined that Valley Asphalt’s work met minimum industry standards. Based upon the evidence presented at the hearing, Administrative Law Judge (“ALJ”) George A. Schade, Jr. submits this Recommended Decision and Order to the Registrar. FINDINGS OF FACT BACKGROUND[1] 1. Complainant Gregory R. Bass/Elite Auto contracted with Valley Asphalt for asphalt work at Complainant’s business. 2. Valley Asphalt, a corporation, holds License No. 142100, Class K-69 (Asphalt Paving), issued by the Registrar on February 4, 1999. Mr. Richard Allen White is the qualifying party. 3. On July 29, 1999, Mr. Bass filed this complaint with the Registrar alleging that Valley Asphalt had not completed the asphalt work as agreed upon, and further, the work had not been done properly. 4. On September 9, 1999, Mr. Joseph D. Cotten, the Registrar’s inspector assigned to this case, made a jobsite inspection. Mr. White attended the inspection. 5. On September 20, 1999, Mr. Cotten made the following determination: “Inspection confirmed paving job meets minimum industry standards. No action required by contractor. If you disagree with this decision and additional evidence exists, you may request a hearing on this matter.” (Emphasis in letter.)

6. On October 4, 1999, Mr. Bass requested a hearing to present further evidence supporting his complaint. 7. On November 17, 1999, the Registrar issued to Valley Asphalt Citation and Complaint No. 00-0326 alleging violations of A.R.S. §§ 32- 1154(A)(3), namely the Registrar’s Rule R9-4-108, Ariz. Admin. Code, and -(A)(7). 8. On December 10, 1999, Valley Asphalt answered the citation and complaint. Valley Asphalt denied the allegations of the complaint. 9. On January 26, 2000, the Registrar issued a Notice of Hearing scheduling a hearing on March 7, 2000. Pursuant to A.R.S. § 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 10. The Registrar mailed a copy of the Notice of Hearing to the two known addresses of Valley Asphalt. 11. On March 6, 2000, Mr. Cotten conducted a prehearing inspection. Previously, Mr. Cotten had notified Valley Asphalt of the date and time of the prehearing inspection. No representative of Valley Asphalt attended the inspection. 12. On March 7, 2000, a hearing was held. No representative of Valley Asphalt appeared at the hearing. The start of the hearing was delayed fifteen minutes to give Valley Asphalt additional time to travel, but a representative did not appear prior to the conclusion of the hearing. The records of the Office of Administrative Hearings do not show that a representative of Valley Asphalt wrote or called regarding the Respondent’s appearance at the hearing. 13. At the hearing, Mr. Bass testified and submitted one exhibit consisting of seven photographs, which was admitted. The ALJ called Mr. Cotten as a witness and took official notice of the entire contents of the file of the Office of Administrative Hearings and of Valley Asphalt’s prior two-year disciplinary record with the Registrar. THE CONTRACT 14. On July 12, 1999, Mr. Bass entered into a contract with Valley Asphalt for asphalt work to be done at the property of Mr. Bass’ business, a used car dealership. Mr. Cotten characterized the contract as an “overlay” contract.[2] 15. The amount of the contract was $2,927.40. 16. On July 12, 1999, Mr. Bass paid Valley Asphalt $1,463.70. Currently, there is a balance due Valley Asphalt of $1,463.70. 17. Valley Asphalt was late in starting the work. Its late start resulted in Mr. Bass losing the opportunity to have another contractor install a wrought iron fence on the property. That other contractor was unable to delay his work to accommodate Valley Asphalt’s late start. Subsequently, Mr. Bass was forced to install the wrought iron fence himself with the help of friends. 18. On July 19, 1999, Valley Asphalt did the work. The asphalt was late in arriving, and the workers were forced to work from 2:00 P. M. to midnight. 19. For eight days after Valley Asphalt finished, Mr. Bass’ business was unable to store cars on the property because the asphalt did not cure quickly enough to permit vehicles to be parked on the asphalt. Valley Asphalt did not see anything unusual with this condition. Mr. Bass had to seek the help of a neighboring business to park his cars. 20. For several weeks after Valley Asphalt finished, turning wheels and standing vehicles and items left unsightly indentation marks, tracks and holes in the asphalt. 21. In late August, 1999, heavy rains resulted in water entering the office building and damaging office supplies. The water entered through the doors on the east side of the lot after it flowed from the north side due to elevated asphalt. When Valley Asphalt laid the asphalt, it created an elevated lip on the east side of the lot. This elevated lip caused rainwater to accumulate and flow inside the office building. 22. There are approximately 15 to 20 spots where water ponds excessively. When it rains, most of these spots hold water about one inch in depth for three days. 23. Prior to Valley Asphalt doing the work, Mr. Bass pointed out a place on the lot, approximately 8 feet by 8 feet, which was low. He asked Valley Asphalt to remedy this low spot. Valley Asphalt did not, and the low spot remains. Excessive water ponds in this area. 24. When Valley Asphalt removed a piece of concrete from the lot, it pulled up the system holding the electric circuits to the lighted business sign. The sign has not worked properly since Valley Asphalt pulled up the system while asphalting. 25. Mr. Bass testified that Valley Asphalt verbally agreed to grade the lot from east to west and from west to east in order to create a valley gutter. Valley Asphalt did not do this. 26. Mr. Cotten testified that there is no valley gutter on the lot, and water is not draining properly out to Dunlap Avenue, the street fronting the business. A valley gutter in the middle of the property, which would drain water out to Dunlap Avenue, would remedy the problems Mr. Bass has encountered. 27. When Mr. Cotten conducted the initial jobsite inspection, he read the contract of the parties and determined that the contract was an “overlay” contract which excluded grading and drainage and finish grading, and further, considered that the Registrar did not have published minimum workmanship standards for this kind of asphalt paving work. After conducting his prehearing inspection and upon further analysis, he concluded that Valley Asphalt had not performed some of the work in a professional and workmanlike manner as required by the Registrar’s Rule R4- 9-108(A), supra. 28. Mr. Cotten testified that based upon his consideration of further evidence, he would have issued a Corrective Work Order directing Valley Asphalt to complete certain items. Those corrective items are described in the Recommended Order below. VALLEY ASPHALT’S PRIOR DISCIPLINARY RECORD 29. The records of the Registrar show that during the past two years four complaints, including this complaint, have been filed against this license of Valley Asphalt. Two of the complaints have alleged poor workmanship. CONCLUSIONS OF LAW APPLICABLE STATUTES AND RULES A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*** 3. Violation of any rule adopted by the Registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

Rule R4-9-108(A), supra, states, “All work shall be performed in a professional and workmanlike manner.”

CONCLUSIONS OF LAW 1. In this disciplinary case, the complainant has the burden of proof, and the standard of proof on all issues is the preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Rule R2-19-119, supra. 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). 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.” BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). 2. Valley Asphalt was notified of the hearing. 3. Valley Asphalt violated A.R.S. § 32-1154(A)(3), specifically, the Registrar’s Rule R4-9-108(A), supra. The Registrar is charged with determining workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), supra. Valley Asphalt failed to perform this work “in a manner befitting a skilled contractor.” The preponderance of the evidence does not support the Registrar’s initial determination of “no action required” by Valley Asphalt. 4. Valley Asphalt violated A.R.S. § 32-1154(A)(7). Its failure to perform in a professional and workmanlike manner are “wrongful” acts or omissions which have “substantially injured” Mr. Bass. Black’s Law Dictionary defines “substantial” as meaning “of real worth and importance; of considerable value; valuable.” BLACK’S LAW DICTIONARY 1428 (6th ed. 1990). Mr. Bass’ business has been affected by the poor work done, and property was damaged as a result of water entering the office building. 5. The Registrar “may temporarily suspend, with or without imposition of specific conditions” a contractor’s license for violations, by acts or omissions, of any of the provisions of A.R.S. § 32-1154(A). A.R.S. § 32- 1154(B). The preponderance of the evidence supports the conditional suspension of Valley Asphalt’s License No. 142100, Class K-69. 6. Valley Asphalt’s prior disciplinary record may be considered “as a matter in mitigation or aggravation” when formulating an appropriate recommended disposition of this matter. Notice of Hearing; Rule R4-9-117, supra. Its two-year prior disciplinary record does not mitigate the sanction of a conditional suspension. RECOMMENDED ORDER It is recommended that the Registrar: 1. Suspend Valley Asphalt’s License No. 142100, Class K-69, but this suspension shall not occur, if on or before ten days after the effective date of the Registrar’s order of suspension, the Registrar receives written notification that Valley Asphalt has completed, or has caused to be completed through other licensed contractors, in a professional and workmanlike manner, the following items: a. Correct the ponding of water in the North side of the lot. b. Strip and grade the lip of asphalt, on the east side of the lot, which causes water to pond and flow inside the building. The level of the outside asphalt should be below the level of the interior building floor. c. Replace the existing overlay such that a valley gutter is installed in the center of the lot to facilitate the drainage of water out to Dunlap Avenue. The valley gutter should allow water to exit the lot without entering the building or remaining on the lot. d. Properly compact and tamper any overlay replaced. 2. Close Citation and Complaint No. 00-0326, if these corrective actions are timely completed. SUBMITTED this 8th day of March, 2000.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on March 8, 2000, for distribution to the parties, to:

Michael P. Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007

George A. Schade, Jr. ----------------------- [1] The ALJ took official notice of the documents necessary to prepare this procedural history. [2] The other types of asphalt contracts are “seal coating” and “grind/grade/new overlay.”

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