ALJDEC

00F-T0206-ROC · Registrar of Contractors · 2000-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, August 1st, 2000; 1:45 p.m. APPEARANCES: The complainant, Ms. Lieu Truong, appeared and represented herself. The respondent failed to appear or be represented. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson, on August 1st, 2000. The hearing was duly noticed to convene at 1:30 p.m., but the administrative law judge waited until 1:45 p.m. for the respondent to appear. Respondent never appeared. 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 in this matter is and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 101834. 2. The complainant contracted with the respondent on or about October 13th, 1998, for the respondent to perform concrete work around her and her family’s Tucson residence. The contract price term was $3,500.00; half to be paid to start, and the other half upon completion. Included in the contract was $500.00 for the respondent to level the land on which the concrete was to be poured. 3. Respondent performed the contracted work in a timely manner. However, complainant noticed that during rains the rainwater would roll down the concrete slab on the north side of her home and enter the home, wetting the carpet. 4. Complainant contacted the respondent several times to return and correct the situation, but respondent ignored her requests. Frustrated, the complainant filed the instant complaint with the Registrar of Contractors on September 10th, 1999. 5. Registrar of Contractor’s Inspector Mr. Bob Gibson was assigned to the case. Before Inspector Gibson could conduct a job-site inspection, but after the complaint had been filed, the respondent attempted some minor correction to the area by applying a top-coating to the concrete he had poured. This attempted remedy proved to be ineffectual. 6. Inspector Gibson, who testified at this hearing, conducted a job-site inspection. He found at the job-site inspection that the respondent’s concrete work was in fact below workmanship standards and in violation of the Uniform Building Code. First, the north side concrete did not have positive grade away from the house; and second, the concrete, which was poured up to the house itself as complainant had wished, was poured above the stucco screed. 7. The stucco screed is a metal lath at the base of the plastering on the exterior of the house. The purpose of the screed is to allow water to weep from the stucco system down and out, and away from the house. According to Inspector Gibson’s testimony, the Uniform Building Code requires a paved surface, e.g. concrete, to be poured at least two inches below the screed, and as has been found herein, respondent poured the concrete above the screed. Inspector Gibson added that this condition as well as the negative grade of the concrete respondent poured on the north side is causing the water to back into complainant’s house. 8. Inspector Gibson also saw at his pre-hearing inspection of the house, conducted the day previous to the hearing, the water damage to the interior carpet and base molding. Complainant also had admitted into evidence color photographs of this damage. Inspector Gibson opined that this damage was directly attributable to the condition of the concrete poured by respondent. 9. Inspector Gibson issued a Corrective Work Order to the respondent, dated November 16th, 1999. He directed the respondent to “[c]orrect concrete flat work to ensure positive drainage and compliance with code” within calendar days from the date of his order. Twenty-five (25) days is a reasonable amount of time to comply with the order. 10. Inspector Gibson further opined that the only suitable correction to this defective situation of the concrete at the north side of complainant’s house is for it to be removed and replaced with positive grade and in conformity to the U.B.C. 11. Inspector Gibson testified that as of the date of his pre-hearing inspection nothing had been done to comply with his Corrective Work Order. 12. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. The respondent is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.2., 7., 23., and 3. 3. A.R.S. §32-1154.A.2., prohibits a licensed contractor from departure from or disregard of the building codes in performing as a contractor. The evidence supports a conclusion that respondent violated this law. In pouring the concrete above the stucco screed the respondent violated U.B.C. Sec. 2506.5, which calls for the concrete to be placed at least two inches below the screed. 4. A.R.S. §32-1154.A.7. prohibits, in part, a contractor from any wrongful act as a contractor which results in another person being substantially injured. Respondent’s acts in pouring the concrete resulted in the water damage to the interior of complainant’s home, a violation of this subsection. 5. A.R.S. §32-1154.A.23. prohibits, in part, a licensed contractor from failing to take appropriate corrective action to comply with this chapter or rules adopted by the Registrar, without valid justification within a reasonable period of time after having received a written directive to do so from the Registrar. Respondent violated this section in failing to comply with the Corrective Work Order. The CWO was a directive from the Registrar, it allowed a reasonable amount of time, and respondent failed to appear at the hearing, thus there is no evidence of valid justification. 6. A.R.S. §32-1154.A.3. prohibits a contractor from violating any rule adopted by the Registrar. The citation and complaint references A.A.C. R4-9-108, Workmanship Standards, as the applicable rule in this case. That rule provides that a contractor’s work fails workmanship standards whenever it is not performed in a professional and workmanlike manner, or whenever it is not performed in conformity to all applicable codes. The evidence shows that the negative grade of the concrete and its placement above the stucco screed violated this rule. Respondent violated A.R.S. §32-1154.A.3. RECOMMENDED ORDER Wherefore, it is hereby recommended that the respondent’s Class B License shall be temporarily suspended until such time as the Registrar of Contractors receives proof that the respondent has properly removed and replaced the concrete on the north side of complainant’s house, establishing proper positive grade and in compliance with all applicable codes, and has caused the interior water damage to complainant’s house to be corrected by appropriate means. It is further recommended that if the respondent properly accomplishes the above described corrective action, on or before the effective date of this order, then the above-provided license suspension shall not take place and citation and complaint number T00-0206, shall be closed. Done this day, August 10, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of August, 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