ALJDEC

00F-1230-ROC · Registrar of Contractors · 2001-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8 and January 22, 2001. APPEARANCES: Daren Sigrist and Craig Connors, Officers in Complainant corporation, appeared on behalf of Complainant. Roger Decker, Esq., appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ The issues in this case are whether Respondent (1)has failed to perform in a workmanlike manner in violation of A.A.C. R4-9-108, (2) has violated A.R.S. §32-1154(A)(3) (violation of a rule adopted by the Registrar), (3) has violated A.R.S. §32-1154(7)(committing a wrongful or fraudulent act which results in substantial injury to another, or (3) has violated A.R.S. §32-1154(A)(23)(failure to follow a corrective work order within a reasonable time after receiving the directive form the Registrar. Based on the testimony and evidence adduced at the hearing, the undersigned finds that Complainants have sustained their burden and proved that the fountain fails to conform to the workmanship standards required by the Registrar. Complainants have failed to prove that Respondent committed a wrongful or fraudulent act or failed to comply with the corrective work order.

FINDINGS OF FACT 1. On February 17th , 1999, Complainant and Respondent entered into a contract whereby, for the sum of $50,000, Respondent agreed to build a water fountain feature in front of Complainant’s commercial building. The contract, prepared by Respondent, called for Respondent to provide the engineering, design, permits and construction of the water fountain. The contract also indicates that “All work is to be performed under the direction and to the satisfaction of the OWNER is (sic) accordance with the plans, specifications, drawings, and schedules for The Work and any supplemental terms and conditions to this Agreement, all of which are incorporated into this Agreement by this reference” (emphasis in original).

2. Delays in the construction, clearly attributable to the Respondent, plagued the construction of this project early on. Nevertheless, Respondent did finally manage to get the fountain operational by July, 1999. 3. The water feature has been incessantly plagued by two major problems (1) the fact that the water fall portion of the feature did not fall in a “sheer descent” pattern and (2) the fact that the Complainants have been unable to maintain the clarity of the acrylic panels of the waterfall portion of the water feature. The “sheer descent” problem has been resolved. The maintenance of the clarity of the acrylic panels remains problematic. 4. Complainants were patient as Respondent attempted to resolve these two major issues for several months. Complainant’s patience wore thin and on October 18, 1999, Complainant filed a complaint with the Registrar. 5. The Registrar assigned Inspector Joseph Cotten to review the case. On December 17, 1999, Mr. Cotten completed a job site inspection with all of the parties present. As a result of the inspection, Mr. Cotton issued a corrective work order requiring Respondent to (1) make the waterfall a sheer descent and (2) requiring, as per job site agreement, that the parties monitor the pH level of the water and, if chemical balance could not be achieved, require Respondent to replace the bronze bubbler heads located in the pool portion of the water feature. 6. As to the issue of the “sheer descent” of the water fall feature, the Respondent contended that the parties did not, at the time of the signing of the contract, contemplate that the water fall would be of the sheer descent type. The undersigned finds to the contrary. It is clear from the testimony of the Registrar’s inspector and the Complainant’s witnesses, as well as the original engineering plans and designs for the fountain that were incorporated as part of the contract at the time of its signing in February, 1999, that the parties from the outset intended that the waterfall feature have a sheer descent. Despite this intention, it took several months, and the issuance of a corrective work order, to get Respondent to create the sheer descent water fall. It was not until February, 2000, when Respondent assigned Mr. Sid Harrell (Respondent’s manager of Respondent’s commercial division) to the problem that a design change to the waterfall feature was implemented and the water fall feature began to work as a sheer descent. This was some two months after the inspector in this case issued his corrective work order. While it is unclear from the evidence that this tardy repair amounted to a failure to follow the corrective work order, Respondent’s slow response time is inexcusable. Moreover, the fact that Respondent did not make the fountain a sheer descent water fall, despite having contracted with Complainants to do so, until after the issuance of a corrective work order, demonstrates a violation of the minimal workmanship standards of the Registrar. 7. Complainants also contend that they are unhappy with the appearance of the repair implemented by Mr. Harrell. This is understandable since as even the Registrar’s inspector noted, the repair is aesthetically unpleasant. It is evident from the testimony of the Complainants, as well as the intent of the parties at the time of the formation of the contract, that the parties intended to build a sheer descent water fall feature without the presence of the demonstrably aesthetically unpleasant repair. It also appears from the testimony that without the repair, the sheer descent would not be possible. Respondent, as the expert in design and building in this agreement, should have been aware of this difficulty before the construction of this project began, or at least should have advised Complainants of the difficulty if not impossibility of creating a sheer descent effect under the perimeters of the design which the parties originally contemplated. While such conduct on the part of the Respondent could in some cases demonstrate a failure to perform in a workmanlike manner, such is not the case here. The Complainants agreed to the modification and signified their satisfaction with the change as shown by the testimony of Respondent’s witnesses. Accordingly, the undersigned does not find that the method of undertaking the repair violates the workmanship standards of the Registrar. 8. Maintaining the clear appearance of the acrylic panels of the water fall continues to be a problem with this fountain. The undersigned finds, based on the testimony of the Complainants, that Complainant’s have undertaken reasonable and appropriate efforts to maintain the cleanliness and chemical balance of the entire water feature. Indeed, the Complainants have followed the Respondent’s recommended water cleaning and chemical balancing regimen. The problem, as demonstrated by the evidence, appears to be in the design of the feature and the poor interface of the pH requirements of the stucco and the acrylic panels. In deference to the Respondent, it appears that this problem may have stemmed from the novel construction that this project presented for the Respondents. Nevertheless, it is clear, as noted by Inspector Cotton, that minimum workmanship standards would require that “all of the components should cooperate as opposed to being antagonistic.” And in any event, Complainant’s could not be expected to do any more than they have to ensure proper cleaning of the water feature. That fact in and of itself demonstrates that the workmanship does not meet the minimum standards required by the Registrar. 9. There does appear, however, to be a potential solution to the clouding problem which Respondent’s poor workmanship has created. Both parties during testimony, and more notably, Complainant’s representative during the closing, discussed the possible implementation of some type of water ionization device. This device apparently will greatly reduce the problem of the clouding of the acrylic panels as the device helps to prevent calcium from adhering to the smooth surface presented by the acrylic panels. While the undersigned will not recommend that any specific remedy be implemented by Respondent to fix the problem with the clouding of the acrylic panels, it might behoove the Respondent to seriously consider the ionization solution as the most cost effective method of repairing the problem. 10.. The undersigned has reviewed and considered Respondent’s two year complaint history in arriving at the recommended disposition of this case. Furthermore, because of the extensive nature of the repairs that may be necessary to correct the clouding problem, it is appropriate to give the Respondent a period of sixty days after the Director’s final order in this case within which to provide proof that the repairs have been implemented. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: 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. * * * (23). Failure 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.

AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainants have the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 3. The evidence as noted above in Findings of Fact Paragraphs Three through Seven establishes that Respondent violated A.R.S. §32-1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. 4. The evidence fails to demonstrate that Respondent violated A.R.S. § 32-1154(A)(23). 5. The evidence does not establish that Respondent engaged in a fraudulent or wrongful act as required by A.R.S. §32-1154(A)(7). There was no evidence that the poor workmanship was the result of a desire to cheat or defraud the Complainants. RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing 60 days after the effective date of the Registrar’s order, the Class A-09 License, No. 071232B, be suspended until such time as Respondent provides proof to the Registrar that the clouding problem with the acrylic panels has been corrected within the standards of workmanlike performance. In the event that such proof is provided on or before the expiration of the 60th day after the effective date of the Registrar’s order, then it is recommended that no license suspension be implemented and that the entire citation and complaint in this matter be closed. Done this day, February 9, 2001. ______________________________________ Gregory L. Hanchett Administrative Law Judge . . .

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826