ALJDEC

00F-1961-ROC · Registrar of Contractors · 2000-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2000, with the record held open for post- hearing memoranda.

APPEARANCES: COMPLAINANT: Stejac, Inc., by John Gilbert, Esq., with Jack Edwards and Steve Harry. RESPONDENT/COMPLAINANT: Tyree Org., Ltd., by Denise Henslee, Esq., with Paul Dugas. RESPONDENT: James Michie, sole proprietor dba Michie Concrete, by Gail Ledward, Esq.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ The hearing in these consolidated matters was held to determine whether either Respondent violated state law as alleged by each Complainant and as cited by the Registrar of Contractors (Registrar). Based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. In Case No. 00-1844 (Docket No. 00F-1844-ROC), administrative notice and the evidence of record establishes that: A. Complainant Stejac, Inc. (Stejac) is a corporation formed to develop commercial real estate at 14031 West Indian School Road in Goodyear, Arizona into a convenience store, car wash and auto service center named “Palm Valley AutoWash” (the Stejac project). Jack Edwards and Steve Harry are principals in the corporation. B. Respondent Tyree Organization, Ltd. (Tyree) is a corporation holding Arizona Contractor’s License Nos. 124052, Class B-01and 119006, Class A. C. On October 29, 1997, Stejac and Tyree entered into a contract in which Tyree, as general contractor, would build the convenience store, car wash and auto service center for the price of $871,469.00. Work under the contract was substantially completed by July, 1998, and certificate of occupancy issued by the City of Goodyear in August, 1998. The facility has been in use since then. D. On January 24, 2000, Stejac filed a complaint with the Registrar of Contractors alleging an extensive number of workmanship deficiencies and other concerns against Tyree. E. The Registrar’s Inspector Mel Purchase conducted two jobsite inspections: after the first he issued a Corrective Work Order (CWO I) on March 9, 2000; this included a number of concrete workmanship issues. After the second jobsite inspection, he issued another Corrective Work Order (CWO II) on May 17, 2000. F. When the matters complained of were not resolved administratively, the Registrar then issued CITATION AND COMPLAINT in Case No. 00-1844 on June 19, 2000. Tyree timely filed its written answer, and the case was set for hearing. Respondent Tyree subsequently requested that the case be consolidated with Case No. 00-1961 against its concrete subcontractor. 2. In Case No. 00-1961 (Docket No. 00F-1961-ROC), administrative notice and the evidence of record establishes that: A. As general contractor on the Stejac project, Complainant Tyree subcontracted with Respondent James Michie (Michie), a sole proprietor and holder of Contractor’s License No. 088428, Class L-09, dba Michie Concrete, for all concrete work on the project. B. On February 10, 2000, Tyree filed a complaint with the Registrar alleging a number of deficiencies in the concrete work done by Michie Concrete. C. After a jobsite inspection by Inspector Purchase, he issued a Corrective Work Order to Michie on March 9, 2000[1]. D. When the matters complained of were not resolved administratively, the case was reopened and the Registrar then issued CITATION AND COMPLAINT in Case No. 00-1961 on September 18, 2000. Michie timely filed a written answer, and the case was consolidated at Tyree’s request and set for hearing. 3. Prior to hearing, a number of motions were addressed at pre- hearing conference, at which time the parties stipulated that a number of matters had been resolved, such that the only issues then remaining were those identified in CWO I against Tyree (and the CWO of the same date against Michie): Complaint #B, (sub A – G); Complaint #C; Complaint #O, and Complaint # Q. 4. At hearing, no testimony or evidence was presented relative to the issues of concrete workmanship, pending remedial work then being completed by Michie Concrete. Subsequent to hearing, counsel for Stejac, Inc. filed correspondence dated November 9, 2000, stating that the deficiencies in the concrete work had been resolved. Therefore, the undersigned finds that Complaint #B (sub A – G) and Complaint #C of CWO I to Tyree in Case No. 00-1844 have become moot, as have all matters in the CWO directed to Michie in Case No. 00-Case No. 00-1961 which required corrective action. 5. Therefore, the only matters remaining at issue at the time of hearing were Complaint #O and Complaint #Q of the CWO directed to Respondent Tyree in Case No. 00-Case No. 00-1844, and no testimony or evidence was presented relative to Complaint #Q. In any event, those items are set forth in the CWO as: Complaint #O Tyree failed to install galvanized steel in the wash bays. The beams and perlins in the wash area are rusting. Contractor to correct by the appropriate means. … Complaint #Q The contract was not completed in a timely fashion as specified by the contract. Contract state[s] “liquidated damages shall be paid by contractor, to owner at a rate of $150/day beyond stipulated contract length of 120 days.” Owner state[s] job went over 35 days. Contractor to correct by the appropriate means.

6. A. Complainant Stejac presented the testimony of its principals, Jack Edwards (Edwards) and Steve Harry (Harry); the project’s architect, John Reddell (Reddell); Mike Wells of Polaris Painting; and Eric Brackman, a coating consultant, and offered Exhibits 1 through 8, which were marked, admitted, and given due consideration by the undersigned. B. Respondent Tyree presented the testimony of Thomas Fretham (Fretham) and Paul Dugas (Dugas), both company employees, and offered Exhibits A through N, which were marked, admitted, and duly considered. Each party also submitted post-hearing memoranda in lieu of closing argument. 7. Jack Edwards testified to describe his role as a principal in Stejac Inc.’s development of the Palm Valley convenience store, automatic car wash, and service center project. He explained that architect Reddell had been hired to produce the Plans and Specifications (excerpted in part in Exhibit M), which were incorporated in the contract (Exhibit 1) with Tyree. He stated that he, Steve Harry, and architect Reddell had all been regularly on site during construction, with his primary role that of dealing with the architect, construction progress, and the lender, while Harry primarily dealt with procurement of the facility’s equipment. 8. Edwards explained that the car wash was a tunnel about 100’ long containing the automated wash equipment through which vehicles would be moved by conveyor belt, and that given the wet environment, he had discussed with architect Reddell during the design of the project the use of galvanized steel to reduce rusting of the metal portions of the structure, such that it was his understanding that galvanized steel was to be used. 9. Edwards stated that he had first observed the metal box beams and C-purlins in question when they were delivered on site, before installation, when he noted the brownish color was not the gray powdery color he associated with galvanized metal, but that he was uncertain the steel was not galvanized until after it had been installed, when in about late May, 1998, his son-in-law, Ramon Cazares, who was a welder/fabricator, visited the site and told him so (see Exhibit 3). 10. Edwards stated he then discussed the beams and purlins with Tyree’s on-site project superintendent, Thomas Fretham (Fretham), who told him steel was not galvanized but coated in a way similar to galvanizing. 11. Edwards stated that the lack of galvanization of the beams and purlins was discussed within two weeks at the next jobsite meeting with various representatives of each party present, including architect Reddell. At that time, “epoxying” of the exposed steel – as much as could be reached without dismantling the structure, since opening day deadlines and commitments were looming – was also discussed. 12. Edwards testified that the Tyree representatives assured him epoxy would be as good as galvanized, which assurances he relied on in authorizing use of the epoxy, which was then apparently applied to the beams and C-purlins in the wash tunnel by June 29, 1998 by a painting subcontractor (Polaris Painting) for Tyree (See Exhibit 4 for the painting subcontractor’s invoice for $1675.00). (Edwards could not verify exactly what Polaris Painting had done, but confirmed the color of the steel had been changed to gray from brown sometime before the car wash was opened. 13. However, Edwards stated that within six months or less after opening the car wash in about August, 1998, it was obvious to all that the beams and purlins were rusting, as was presently evident in photographs taken in July, 2000 (See Exhibit 2, 10 photographs reproduced on 5 pages). He noted that the separate roofing metal, which was galvanized according to the plans, was not rusting. 14. In his testimony, Edwards confirmed (as did Steve Harry) the signature of Stejac’s other principal, Harry, on Tyree’s recently- discovered (only after CWO I had been issued) August 14, 1998 “CHANGE ORDER #30 – STEEL CREDIT” (Exhibit 5), and although he did not question the authenticity of CHANGE ORDER #30, he did question its enforceability since it lacked the architect’s approval. 15. In referring to all thirty-one Change Orders on the project drafted by Tyree (Exhibit C), Edwards stated that he had signed all the Change Orders prior to August 14, 1998, but conceded that of the thirty-one Change Orders, one was unsigned (CHANGE ORDER #15); some had only Steve Harry’s signature; some had only his own; some had only architect Reddell’s; and some had more than one signature. He speculated that Tyree had Harry sign CHANGE ORDER #30 to avoid his (Edwards) scrutiny. 16. Given the potential relevance of CHANGE ORDER #30 on the issue of the galvanized steel, its terms are as follows: Description: Steel credit for items noted in plans and specifications but not installed by steel subcontractor (Desert Metal Fabrications), including steel plate at cashier’s area and use of non-galvanized materials in wash tunnel. In addition, Desert Metal Fabrications will be backcharged $1675 for epoxy coating of beams and C-purlins in wash tunnel which was done by Polaris Painting.

Credit for steel plate at cashier’s area[2] $ 250.00 Credit for use of non-galvanized materials in wash tunnel 1195.77 Net Credit $ 1445.77

17. Edwards confirmed that in his subsequent communications with architect Reddell (See Exhibit B), he had not raised an objection to the credit described in CHANGE ORDER #30 for the use of non-galvanized materials in the wash tunnel. 18. Edwards also explained the process, chronology, and itemization of funds released by the lender relative to the steel (See Exhibit E), and his ongoing communications (Exhibit B) with the architect about payments to Tyree. 19. Mike Wells (Wells) testified for Polaris Painting to describe his discussions with Tyree’s Fretham about the use of epoxy on the red- primered beams and purlins after they had already been installed, and the concern he expressed to Fretham that epoxy would result in a maintenance issue every several years. 20. Wells stated that over the course of four days in June, 1998, his crew mixed on site and applied an epoxy of a type and per the recommendations of a paint manufacturer to the exposed sides of the beams and purlins, after first using an “etching” product to prepare the metal. 21. Wells stated that he then returned to view the beams and purlins in about March, 1999, and noted rusting, although not to the extent shown in the photographs of Exhibit 2. At that time he reiterated that this was a maintenance problem and he prepared a proposal (Exhibit 4) for Tyree to epoxy all metal beams in the car wash tunnel, but it had not been accepted. 22. John Reddell, a licensed architect since 1982, testified to describe generally his qualifications, and his experience in designing car wash systems as something of a sub-specialty, noting that epoxy-coated metals had been used in some such facilities but galvanized steel used in others. 23. Reddell then specifically described his role in meeting with Edwards and Harry in preparing the Plans and Specifications for Stejac, Inc. to be used in the Palm Valley AutoWash, and his subsequent monitoring of the construction progress and release of funds from the lender. 24. Reddell explained how the several sections of the Plans and Specifications were drafted to suit the needs of the various parties involved in the various aspects of the construction process, noting, for instance, that in the “General Structural Notes” (p. S.1.1) only the deck (roof) would be referenced as galvanized, and not the beams and purlins, which would be fabricated/manufactured off-site, although in Notes 44, 45, and 46 to “Building Sections” (p.A.5), the deck, box beams, and C-purlins were each referenced as galvanized, but with the comment “see structural” (Exhibit M, excerpts of Plans and Specifications). 25. Reddell explained why galvanized steel was a preferred metal finish for use in wet environments such as a car wash, and would hold up very well for up to twenty-five years, with epoxy acceptable but requiring maintenance after about seven or eight years. 26. Reddell stated he first became aware that the beams and purlins were not galvanized only after they had been installed, at which point the significant time and labor necessary to remove the welded steel and return it to the fabricator for galvanizing or replacement would compromise deadline dates for opening the carwash. 27. For that reason, and given his past experience with the use of epoxy in carwashes, Reddell stated he then suggested its use on the beams and purlins when the next construction meeting took place, at which time the Tyree people represented that epoxy would be nearly as good as galvanized steel. Although he realized advancements had been made in epoxies since his last use, Reddell also explained to those present, including Edwards and Harry, the useful life of that process as about seven years, and the maintenance required thereafter, such that he recommended that a monetary credit be provided to make up for the difference. 28. Reddell noted the current extent of the rust evident on the beams and purlins, and opined that structural integrity had yet been affected, although the rust would significantly reduce the life of the metal if it were unabated. He therefore currently recommended that the exposed steel be sandblasted and then re-epoxyed, although there would remain unexposed sections of steel which could not be reached (unless the roof were lifted) and which would therefore continue to rust. 29. Reddell explained his understanding why certain of the Change Orders (Exhibit C) had been signed by Edwards, Harry, or himself, and stated that he was unaware why any particular change order would require his signature to be valid. 30. With particular regard to CHANGE ORDER #30, Reddell stated that it was consistent with his recollection of the conversations at the jobsite meeting addressing the question of galvanized steel, and his recommendation that a credit be taken, although he had not made any specific suggestion as to the dollar amount. 31. Reddell also noted that Edwards’ later memo to him (Exhibit B) did not raise any concerns about the galvanized steel credit set forth in CHANGE ORDER #30, and that he had signed various applications approving payment to Tyree (Exhibit E) without question at that time as to the galvanized steel beams and purlins, although payment for other items such as the asphalt had been withheld. He confirmed that his determination to not to certify the project expressed in correspondence in August (Exhibit J) and November, 1998 (Exhibit K) did not cite the galvanized steel as the reason. 32. Eric Brackman (Brackman) testified to describe his experience and job-related training in protective industrial coatings, and his past and present relationship with Tnemec, a coating manufacturer with a testing facility outside Arizona. 33. Brackman stated he had been retained by Stejac as a consultant to inspect the coating on the wash bay beams and purlins at the Palm Valley Autowash, which he had done in September, 2000, at which time he had obtained a quarter-sized chip of the coating material from near the top, just before the exit, and forwarded it to Tnemec for analysis. 34. Based on the information he had received from Tnemec, and his understanding of the practices and procedures used in its testing facility, Brackman stated that he had then authored correspondence dated October 23, 2000 (Exhibit 6) in which he had stated that microscopic and microspectroscopy analysis generically identified the chip as an “aliphatic acrylic” and not an epoxy, consistent with his own opinion on visual inspection prior to that analysis. He further concluded that an epoxy coating properly applied in June, 1998, should have prevented rusting to something less than the extent he had observed in September 2000, and as was apparent in the photographs from July, 2000- (Exhibit 2). 35. Brackman recommended that the rusting on the exposed steel beams and purlins be addressed by a twelve-day process of sandblasting; then an application of zinc (as a “sacrificial” layer similar to that used on boat hulls to inhibit salt-water induced corrosion); and finally, two coats of high-quality epoxy, with time to cure. 36. With regard to the areas of steel not visibly exposed, and therefore not readily subject to that process, Brackman thought that a “seal/weld” of urethane caulk would slow down the rusting by eliminating moisture and oxygen in those areas inaccessible to epoxy but still subject to constant moisture from the car wash. 37. Brackman opined that the process he recommended would last at least as long as the 25 to 30 year useful life of galvanized steel, and that even sandblasting and two coats of epoxy - without the zinc – could last 15 to 20 years. 38. Brackman confirmed that the original analysis he had received from Tnemec also referenced “titanium dioxide” as present in the chip. He did not clearly explain why he had not included that reference in his correspondence, or whether it had any significance. 39. Thomas Fretham (Fretham) testified to describe his experience in the construction trades, and in reading plans and specifications. He stated that he had been employed by Tyree for four years, and that the company primarily built gas stations, where it was necessary to consider “cathartic protection” by grounding the gas tanks to prevent electrolysis and corrosion similar to rust. 40. Fretham stated that he had been job superintendent of the Palm Valley Autowash project, on site every day during construction, from about mid-February to mid-August, 1998. 41. Fretham stated that Edwards approached him shortly after the box beams and C-purlins were installed with concerns that the steel was not galvanized, so he went to the job’s Plans and Specifications (Exhibit M), which he thought were ambiguous, since the “Building Sections” Notes 44, 45, and 46, at p. A.5, did indicate the deck, beams and C-purlins as galvanized, but also referred to the structural portion, such that the “General Structural” Notes section, at p. S.1.1 did specify the deck was to galvanized, but there was no such specification for the beams and purlins. Nevertheless, he conceded that Tyree’s position was that galvanized steel had originally been called for in fabricating the beams and purlins, given the wet environment of the wash tunnel. 42. Fretham explained that the steel fabricator would have referred to the Plans and Specifications to determine how to supply the various types of steel needed, and if the fabricator could not determine exactly what was specified there, it would refer to the architect’s “spec book”. Fretham thought the applicable section of the spec book was S05100.2, structural metal (excerpted in Exhibit M), which on his review, made no reference to galvanized steel. 43. Fretham stated several alternatives were discussed with architect Reddell and the others at the construction meeting, including waiting to have the steel fabricator provide galvanized steel beams and purlins, or coating with epoxy, and that due to completion deadlines, it was agreed that epoxy was the next best option to galvanized steel, and that a credit should be provided, all consistent with the eventual terms of CHANGE ORDER #30. 44. Fretham denied making any representation at the meeting that epoxy would be as good as galvanized steel, stating that he had only explained the options were to wait for galvanized steel or to immediately arrange to epoxy the steel, which he did by agreement by soliciting a bid from Polaris Painting, which was accepted. He stated that he had been present when Reddell had advised everyone, including Edwards and Harry, that epoxy would be a maintenance issue. 45. Fretham stated he was familiar with epoxy as a coating which required two separate substances to be mixed just prior to application, and that although he could not verify what brand was used, or just where it was applied, he could confirm that he had observed the mixing of the two components by Polaris Painting just prior to application. 46. Although he had not been on site since about mid-May, Fretham noted the extent of the rusting then to be consistent with the photographs of Exhibit 2, taken about two months later. He explained that the owner of a company specializing in environmental coatings had viewed the rusting beams and purlins, and recommended a process very similar to that described by Brackman, although with fewer days downtime necessary to complete the work. 47. Fretham conceded that the rusting evident seemed to indicate the epoxy coating was a poor product, or not applied very well, since he agreed with Reddell that epoxy should last 7 to 8 years in preventing significant rust. He confirmed that he had not given any particular instructions to Wells of Polaris Painting prior to that company’s application of the epoxy in June, 1998. 48. Paul Dugas (Dugas) testified to describe his prior experience in the construction trades, and his current employment with Tyree since mid- March, 1999 as a project and branch manager. 49. Dugas explained that he had not been directly involved in the circumstances leading to the Polaris Painting proposal of March 17, 1999, to re-epoxy the rusting beams and purlins, but was aware that due to lost revenue, Stejac did not wish to shut down the wash bay for the length of time necessary for such work. 50. Dugas stated that he had not been employed by Tyree at the time of the Stejac project, so was unaware that CHANGE ORDER #30 existed until well after the jobsite inspection and CWO I had been issued by the Registrar’s inspector. 51. The parties’ closing arguments (and cross-responses) essentially concur that although galvanized steel beams and purlins “should” have been installed, the recently-discovered CHANGE ORDER #30 had been negotiated to provide that epoxy would be applied instead, for a credit, given that epoxy would require maintenance not required by the galvanized steel. 52. The parties’ arguments diverge in that: A. Stejac contends that the extent of rusting now evident on the beams and purlins presents a workmanship problem, and violation of the contracting laws, which requires correction by Tyree, whether the cause of such rusting is the absence of galvanized steel or improper or absent application of epoxy, since all evidence is that epoxy should serve to inhibit rusting for at least seven or eight years but that significant rusting was evident in less than two. B. Tyree asserts that the “act” complained of by Stejac to the Registrar, and for which the Registrar requires correction in this case, was Tyree’s failure to install galvanized steel, and not the rusting occurring in its absence or for failure of the epoxy to meet expectations, such that no violation of the contracting laws has been proven.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 00-1844 charged Respondent Tyree with possible violations of A.R.S. § 32-1154.A.2, A.3 (and A.A.C. R4-9-108, the workmanship rule), A.7, and A.23. The CITATION AND COMPLAINT in Case No. 00-1961 charged Respondent Michie Concrete with possible violations of A.R.S. § 32-1154.A.3 (and A.A.C. R4-9-108), A.7, and A.23. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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 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 written directive from the Registrar.

A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. As determined in Finding of Fact No. 4, subcontractor Michie has accomplished remedial work on the concrete sufficient to cause Stejac, Inc. to consider those workmanship matters resolved relative to that item of its complaint and the CWO directed to Tyree Org. Ltd. In Case No. 00-1844. 3. Although Tyree, as Complainant in Case No. 00-1961, has not confirmed a similar resolution in writing of its complaint against Michie, the undersigned concludes that since those same concrete workmanship issues formed the very same basis for Tyree’s complaint and the CWO directed to Respondent Michie in that case, Tyree’s complaint and the CWO to Michie are therefore also resolved and now moot, and the CITATION AND COMPLAINT in Case No. 00-1961 should therefore be closed. 4. Therefore, to warrant disciplinary sanctions by the Registrar in Case No. 00-1844, Complainant Stejac, Inc., must demonstrate by a preponderance of the evidence that Respondent Tyree Org, Ltd. violated any one or more of the statutory sections cited with regard to those matters remaining at issue. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994. 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 (Rev. 6th ed. 1990). 5. Relative to the alleged violation of A.R.S. § 32-1154.A.2, the undersigned concludes that no violation is proven, for the reason that although Tyree’s failure to use galvanized steel on the beams and purlins is determined to be an unintended departure from or disregard of the somewhat ambiguous plans and specifications, such departure or disregard was negotiated by the parties and consented to by Stejac in CHANGE ORDER #30, the existence of which was unknown to the Registrar’s Inspector when his Corrective Work Order was issued. 6. Relative to the alleged violation of A.R.S. § 32-1154.A.3, and A.A.C. R4-9-108, the workmanship rule, the undersigned concludes that such violation is proven by a preponderance of the evidence, which demonstrates that the rusting evident when complained of in March, 2000 - less than two years after substantial completion of the project (and epoxying of the beams and purlins) - fails to meet minimum standards of workmanship. This is so, giving reasonable consideration to the terms and intent of the Registrar’s Corrective Work Order in Complaint #O, which recognizes the problem to be rusting beams and purlins, and presumes the cause of the problem to be Tyree’s failure to install galvanized steel, a reasonable presumption in light of the information then known, which did not include knowledge of CHANGE ORDER #30. 7. That change order, only later found and produced by Tyree, was used to refute the cause of the rusting problem, not the problem itself, and if the document had been known to the Registrar’s inspector, it likely would have caused him to presume instead an epoxy failure as the cause of the rust, but without doubt his directive that “…beams and perlins [sic] in the wash area are rusting. Contractor to correct by the appropriate means” would have remained in effect. Therefore, the undersigned concludes that Respondent Tyree remains responsible for correction of the rusting beams and purlins by appropriate means pursuant to the directive of the Registrar. 8. The Registrar’s directive requires appropriate corrective or remedial action by a contractor in order that minimal workmanship standards be met. In this instance, the evidence is uncontroverted that the original application of epoxy failed to meet minimal standards, for whatever reason, such that the appropriateness of a similar application in remediation would be questionable. 9. To that end, testimony offered by Complainant describes one method of meeting workmanship standards by means of taking twelve days downtime to sandblast the beams and perlins to bare metal, then to apply zinc and two coats of epoxy where accessible, with caulking elsewhere; and Respondent provided testimony that a similar process - but with less downtime - had been recommended to it by a third party. Either method would appear to merit Respondent’s consideration. 10. However, neither the Registrar nor the Complainant should direct Respondent on the manner or method in which to accomplish the appropriate corrective action, if such action is reasonably calculated to accomplish the goal of meeting the minimum standards necessary to remove existing rust from the beams and purlins, and to inhibit future rusting in the wet environment of the carwash. 11. In addition, the Registrar of Contractors cannot order a trespass to otherwise provide a contractor access to perform required corrective action, and the instant record fails to establish any grounds for departure from the long-standing policy of the Registrar to allow a contractor reasonable opportunity and access, after a hearing, to correct any determined deficiency in its work. 12. Relative to the alleged violation of A.R.S. § 32-1154.A.7, the undersigned concludes that the evidence is insufficient to demonstrate the doing of a wrongful or fraudulent act by Respondent Tyree. 13. Finally, relative to the alleged violation of A.R.S. § 32- 1154.A.23, this tribunal determines that this record does not support any such violation. While there is no doubt that Respondent Tyree has as yet failed to take the remedial action first directed by the Registrar, and now recommended hereinabove, it is concluded by the undersigned that such failure has been with valid justification, given uncertainty by Respondent as to appropriate action to be taken, and reluctance on Complainant’s part to allocate downtime to allow for Tyree to questionably “paint” the rusting metal. RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that in Case No. 00- 1844, commencing sixty (60) days after issuance of the Registrar’s Order entered in this matter, that License No. 124052, Class B-01, and License No. 119006, Class A, of Respondent Tyree Org., Ltd., be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and adequate corrective action sufficient to meet the Registrar’s standards of workmanship. Any unreasonable denial of access by Complainant effectively preventing Respondent from performing such work shall be deemed equivalent to compliance with the Order. IT IS FURTHER RECOMMENDED that if Respondent Tyree accomplishes the required corrective work on or before sixty (60) from issuance of the Registrar’s Order, or is denied reasonable access for such purpose, then the above license suspension shall not take place. IT IS FURTHER RECOMMENDED that in Case No. 00-1961, the Citation, and Complaint upon which it is based, be closed. Done this day, December 12, 2000.

______________________________________ Anthony Halas Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The CWO directed to Michie in Case No. 00-1961 contains the exact same concrete workmanship issues included as a subset of the matters addressed in CWO I to Tyree in Case No. 00-1844. [2] Although the “steel plate at cashier’s window” was an item in Stejac’s original complaint against Tyree, and CWO I, it was apparently resolved prior to hearing and is included in reproducing CHANGE ORDER #30 only for completeness.

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