ALJDEC

00F-T0208-ROC · Registrar of Contractors · 2000-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, April 4th, 2000; 9:00 a.m. APPEARANCES: The Complainant, Mr. James Fowler, represented himself. The Respondent, Sombra Homes, Inc., was represented by Mr. Pat Lopez, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing on April 4th, 2000. Testimony was heard and other evidence admitted to the 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, Sombra Homes, Inc., 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 097699. 2. The Complainant, Mr. James Fowler, is a resident of Tucson, Arizona, and this matter concerns the construction of his residence by the Respondent. 3. The parties contracted in 1997 for the Respondent to construct Complainant’s home. The move-in date was on or about May 1st, 1998. 4. Following move-in Complainant had many items of complaint with the construction of his house. Several of those items remaining unresolved to Complainant’s satisfaction on September 13th, 1999, he filed the instant administrative complaint against the Respondent’s license on that date. 5. Registrar of Contractor’s Inspector Mr. James R. Morris was assigned to the case. He conducted a job-site inspection on October 5th, 1999, and issued a Corrective Work Order to the Respondent on October 15th, 1999. The CWO shows that Mr. Morris considered nearly two dozen items of complaint, but directed the Respondent to correct but a dozen of the items, and do so within 15 calendar days. 6. Prior to the administrative hearing of this matter, Complainant had been satisfied as to most of the items. In fact, by the hearing, only two items remained as subjects Complainant wished to address at the hearing.

7. The two items with which the Complainant continued to be dissatisfied were the condition of the drywall at the base molding on the north wall of the garage, and the complaint of water ponding, or not being adequately carried away, on the east side of the home lot. 8. The drywall issue arose due to there having been some bubbling or blistering at a small area on a wall in the garage. According to the testimony of Mr. Morris, this condition was in need of a “minor tune- up,” and the Respondent began correcting the condition even as he was conducting his job-site inspection. By the time of the administrative hearing, the overwhelming evidence was that the condition of the drywall was corrected. Such evidence includes the testimony of Mr. Morris who conducted a pre-hearing inspection on March 30th, 2000. 9. The issue of the ponding at the east side of the lot is more involved. The complaint originally concerned actual ponding out, away from, the house on the east side. Complainant produced insufficient evidence to support a finding that there is any significant problem of ponding in this area. Contrary evidence was presented which tended to prove there was not a large-scale ponding problem in the lot. Categorically, it is more difficult to prove a negative, but much evidence was produced tending to show that there is no ponding problem in the lot’s east side generally. Mr. Morris never saw such a problem, and indicated as much in his CWO. The Respondent credibly testified that he drove over to the lot during a rain storm on August 27th, 1999, a rainstorm that produced flooding in the immediate vicinity, and viewed the lot, but saw no ponding. Furthermore, based on the evidence, it now seems to be the concession of the Complainant that the ponding problem no longer is at the east side, but is localized at the area around the patio. 10. One part of the CWO was to replace the concrete slab of the patio. In doing so it seems that the height of the slab was lowered slightly. Whether this result is the sole or only a contributing cause, there now is sufficient evidence to find that a slight imperfection in the grade of the lot adjoining the patio was created. 11. For the most part, the grade was adequately created by the Respondent and his subcontractors to move water away from the patio. The grade was in most every area around the patio at least 2% (or, ¼” per foot) which the evidence shows is within the Uniform Building Code and acceptable industry standard. However, the testimony of key witnesses including the man who graded the area around the patio after re-pouring the slab, Mr. Jim Wallace, show problems still exist. According to him, although he shot a transit along the line of the patio, there could have been some isolated areas where the grade was less than 2%. Also, Mr. Morris eyeballed the area at his pre-hearing inspection on March 30th, 2000, and he testified that at some areas it appeared to run back to the patio, rather than away from it. Mr. Morris concluded as of the date of the hearing that the area needed some more work. 12. Complainant did produce sufficient evidence to find that during rainstorms there is a problem of inadequate drainage or carrying off of water from the area next to the patio just below one of the scuppers. But this problem could have been rectified before hearing had Complainant allowed Respondent to do so. 13. It is undisputed by the parties that the Respondent had offered to construct a swale that would carry off water from the patio area to a point where it would be properly dispersed. It is also undisputed that Respondent’s crew arrived at the job-site to do just this. When they arrived they were met by the Complainant who inquired of them if they had brought landscaping rock with them to fill the swale. When the crew responded that they had not, Complainant ordered them off his property. Thus no swale was built. 14. While the contract calls for the Respondent to be responsible for site grading, it also calls for the Complainant to be responsible for landscaping, and this includes landscaping gravel or rock. Respondent is not and was not responsible for adding rock to the swale. 15. Complainant’s contention that because the Respondent should have constructed the swale in the first instance, it should now be held accountable for filling it with rock, is rejected. Nevertheless, Respondent should return to the job-site to construct the swale, and be allowed to do so by the Complainant. 16. 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 herein is charged with possible violations of A.R.S. §32- 1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.23., prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractor laws, without valid justification, within a reasonable period of time, after having received a written directive from the Registrar to do so. In this case the only written directive is the CWO, and the evidence is that Respondent complied with that. There is no violation of A.R.S. §32- 1154.A.23. 4. A.R.S. §32-1154.A.3., prohibits a licensed contractor from violating any rule adopted by the Registrar. The rule cited in this citation and complaint is A.A.C. R4-9-108, Workmanship Standards. In failing to originally construct the swale for proper drainage away from the patio area beneath the scupper, the Respondent violated the minimum workmanship standards for licensed contractors, which are found in the Registrar’s publication, “A Guide for Contractors: Minimum Workmanship Standards for Licensed Contractors”, at page 51, under the heading “SITE.” According to site standards a contractor should, at the time of substantial completion of the project, establish the necessary grades and swales to insure proper drainage away from the improvements. This is a different workmanship standards from “SITE WORK” at page 40 of that publication, which addresses improper drainage due to improper grading, and allows for water to remain up to 48 hours after a rain. 5. It was also a violation of the workmanship standards, although not an egregious one, to fail to assure a minimum positive grade away from the patio, at all points, of 2%. Respondent should correct this. 6. There is no evidence to conclude that Respondent violated A.R.S. §32- 1154.A.7., by engaging in any fraudulent conduct whatsoever, or wrongful conduct other than the matter of neglecting to construct the swale.

RECOMMENDED ORDER

Wherefore, it is hereby recommended that Respondent’s Class B- license number 097699 be temporarily suspended until such time as the Registrar of Contractors receives proof that that the Respondent has properly constructed a swale to carry off water from the area adjacent to the porch and beneath the scupper, as previously agreed, but without necessity of landscaping the swale with rock or gravel or otherwise, and created a minimum grade away from the patio area in question of 2%. It is further recommended that if the Respondent properly accomplishes the above described corrective actions on or before the effective date of this Order, then

. . .

the above-provided license suspension shall not take place, and Citation number T00-0028, together with the Complaint on which it is based, shall be closed. Done this day, April 19th, 2000.

_________________________________ Grant Winston Administrative Law Judge

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

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

By _______________________________

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