ALJDEC

00F-S0126-ROC · Registrar of Contractors · 2000-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, November 16th, 2000; 8:30 a.m. APPEARANCES: The complainant was represented by Mr. John W. Wilcox, complainant’s operations manager. The respondent was represented by Mr. Daniel De Anda, respondent’s operations manager. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was convened at the above date, time and place. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-09 License number 101828. 2. The complainant is, and during all times material hereto was, a general contractor, licensed by and doing business in the State of Arizona, holding Class B License number 128068. 3. Complainant was the general contractor developing a residential subdivision in Sierra Vista, Arizona. Respondent was the subcontractor to perform the concrete work in the subdivision. 4. Respondent performed the concrete work at one of the residences having the address of 1697 Starview Place. The parties contracted for this work on or about July 10th, 1997, and the work was originally completed by the respondent on or about December 5th, 1997. 5. The new homeowners of 1697 Starview Place took possession in December of 1997. Sometime in July of 1998, the complainant first learned of problems the homeowners were experiencing with their concrete. 6. Complainant attempted to work with the respondent to have the problems with the concrete addressed. The problems were of the concrete driveway slab cracking and moving, a crack in the concrete slab in the master bathroom, and excessive cracking in the back patio. 7. The only work the respondent performed at the job-site after its initial completion of the project in December of 1997, was to attempt to make repairs to the driveway (including making a core drilling) on January 24th, 2000. 8. Complainant and the homeowner remained unsatisfied with the condition of the concrete, and on April 26th, 2000, the complainant filed the instant complaint. 9. The complaint was assigned to Registrar of Contractor’s Inspector Mike Nieves, who conducted a job-site inspection on May 10th, 2000, and issued a Corrective Work Order to the respondent on May 11th, 2000. 10. The inspector’s conclusion was that, but for the workmanship defects he found at sections ## 2 and 6 of the driveway, those whereat the respondent had attempted repair work in January of 2000, the concrete work of the respondent at this particular job-site was older than two years. Therefore, Inspector Nieves issued his CWO in a manner directing the respondent to “correct, repair, or replace” within 15 calendar days from the date of the CWO (a reasonable amount of time), “Driveway sections 2, southside, and 6, southside.” The evidence supports a finding in favor of the inspector’s conclusions that these areas are defective and in need of repair. There is excessive cracking in the driveway concrete and a slab is loose and will move whenever any vehicle crosses over it. Even the respondent conceded at hearing that the loose slab might break in the future. 11. Respondent did not make these corrections, and complainant requested an administrative hearing. Citation and Complaint issued from the registrar on June 29th, 2000, citing the respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 12. Respondent timely filed its written answer to the Citation and Complaint on July 7th, 2000. Respondent defended with the assertion that the work was older than two years, and therefore not properly the subject of an administrative complaint before the registrar. Respondent had not made the ordered corrections as of the date of the administrative hearing. 13. The relative positions of the parties expressed at the hearing were rather intransigent. Complainant contends that the whole of the work performed at the job-site should be repaired as being defective and properly brought before the registrar. The respondent contends that none of the concrete work is properly before the registrar as it was performed more than two years previous to the filing of the complaint. 14. Notice is taken of the respondent’s prior license record with the registrar of Contractors. CONCLUSIONS OF LAW 15. This hearing was held under authority of and pursuant to A.R.S. §§32- 1156, and 41-1092 – 1092.12. 16. The respondent herein is charged with possible violations of A.R.S. §32- 1154.A.7., 23., and 3. 17. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any administrative rule adopted by the registrar. The particular rule in this case, as cited in the Citation and Complaint, is A.A.C. R4-9-108, Workmanship Standards. Sections A and B of that rule require a contractor’s work to be “professional and workmanlike,” and “in accordance with . . . . . professional industry standards.” The excessive cracking and the moving slab violate these standards. Respondent violated A.R.S. §32-1154.A.3., as set forth in the citation and complaint. 18. A.R.S. §32-1154.A.23., prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractors’ laws of Arizona without valid justification, within a reasonable period of time, after receiving a written directive from the registrar. The written directive in this case is the CWO, and it allowed respondent a reasonable amount of time to make the corrections. Respondent did not do so. Respondent’s justification is that the work is older than two years and therefore the complaint against that work was not timely filed. 19. Respondent bases its defense to the charge of possibly having violated A.R.S. §32-1154.A.23. (as well as to the entire Citation and Complaint) on A.R.S. §32-1155.A. That statute requires an administrative complaint such as complainant’s be brought to the registrar within two years from the date of the completion of the contractor’s work which is the subject of the complaint. It is true in this case that respondent’s work at the subject job-site was initially completed in December of 1997. However, respondent returned and attempted repairs to the defective concrete in the driveway as late as January, 2000. Thus this complaint as to that portion of the work, is within the two-year rule of the statute and, as to it, respondent has no valid justification for not correcting after having received the CWO to do so. Respondent violated A.R.S. §32- 1154.A.23., as to the portions of the concrete work mentioned in the CWO to be corrected. 20. Respondent’s defense as to the other portions of the concrete work is well-founded and the complaint ought to be dismissed as to those items as being untimely brought to the attention of the registrar pursuant to A.R.S. §32-1155.A. 21. A.R.S. §32-1154.A.7., prohibits a contractor from engaging in any act as a contractor which is fraudulent or wrongful and which substantially injures another person. Other than the concrete work in the two driveway sections that were ordered by the CWO to be corrected, there are no other independent violations of this section. RECOMMENDED ORDER Wherefore, it is hereby recommended that as to all items of the complaint other than those mentioned in the Corrective Work Order to be corrected, repaired or replaced by appropriate means, the complaint be dismissed as untimely filed. It is further recommended that as to the items listed in the CWO to be corrected, repaired or replaced by appropriate means, and which, as found, the respondent has not corrected, that respondent’s Class C-09 License number 101828 be suspended until such time as the registrar receives proof that those items have been satisfactorily corrected. It is further recommended that if the respondent makes the appropriate corrections to the concrete work as set forth in the CWO, on or before the effective date of this order, that no suspension of respondent’s license occur, and Citation and Complaint Number S00-0126, be closed. Done this day, November 30th, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488