ALJDEC

00F-Y0127-ROC · Registrar of Contractors · 2000-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2000 at 9:00 a.m. APPEARANCES: Complainant Michael J. Perry appeared on his own behalf; Respondent John Webster Construction, Inc. appeared through its qualifying party, John Ray Webster. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the issue of whether John Webster Construction, Inc. violated any of the statutory subsections charged in the Citation and Complaint in its construction of and failure to repair the cracks in the concrete slabs at Mr. Perry’s commercial storage facility. Based on the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT Background The Registrar of Contractors issued License No. 111794, Class B-01, to John Webster Construction, Inc. on March 11, 1996. On May 12, 1999, John Webster Construction, Inc. contracted with Mr. Perry to furnish the labor only for the following work at the Val-U-Storage self- storage facility in Yuma at the following prices: 3) Form, pour & finish concrete for buildings A, B, C, D, E & F 36,860.00

2) Erection costs for Buildings A, B, C, D, E & F 61,425.00

3) Demo slabs, prepare & pour 370’ of additional footers 2,500.00

The storage units, when constructed, would have a total of approximately 5,000 square feet. Mr. Perry was to supply all the materials for the job. Mr. Webster recommended that concrete from Tanner Co. be used on the job because it was so large and, in the approximately 11 years he had been involved with projects using Tanner Co.’s supplies, he had never experienced any problems. Mr. Perry wanted to go with Superstition Crushing L.L.C. If Mr. Webster had been unwilling to use Superstition Crushing, Mr. Perry would have awarded the concrete portion of the job to the next lowest bidder. The plans for the project specified that the concrete was not to be tamped.[1] The plans also required the contractor and/or owner to “cure concrete members and slabs with polyethylene for 5 days or with a curing compound approved by the structural engineer” and to “submit mix designs for review before placement of concrete.” The plans also provided that “construction, shrinkage, and expansion joint locations not shown on the structural drawings must be approved by the structural engineer.” John Webster Construction, Inc. poured the slabs between June and September, 1999, using 3000 psi concrete that Superstition Crushing had supplied. The record does not reveal whether the structural engineer approved Superstition Crushing’s mix before John Webster Construction, Inc. used it to pour the slabs. Superstition Crushing’s owner, Myron Jones, testified at the hearing that the mix was computer generated. John Webster Construction, Inc. cut many sawcut control joints right after the concrete had been placed but waited 24 hours to cut other control joints. John Webster Construction, Inc. tamped around the edges and over the rebar and bow-floated the remainder of the slab for densification. Mr. Perry did not supply any curing compound. John Webster Construction, Inc. applied a floable product to prevent cracking.[2] John Webster Construction, Inc. also put plastic sheets over at least part of the concrete to slow the rate at which the surface dried in the summer heat, but at least some of the plastic sheets blew off. Shortly after the various slabs were poured, cracks began appearing at buildings A, B, C, D, and F.[3] Some of the cracks appeared in the sawcut control joints, but many ran parallel to or ran across the control joints. When Mr. Perry complained about the cracks to Mr. Webster, he blamed the concrete mix. Mr. Perry then told Superstition Crushing about the cracking and it hired C H J, Inc., a consulting service, to inspect the concrete. On September 24, 1999, C H J, Inc.’s employee George Battey III, a registered professional engineer, Arizona Certification No. 29666, issued a report to Superstition Crushing that stated in relevant part: At your request, we performed a visual examination of the concrete slabs on grade at the Self Storage Facility at 3090 Avenue 3E in Yuma, Arizona on September 20, 1999. These slabs on grade were also examined on August 3, 1999.

This concrete was placed during June and July of 1999. Many random cracks are present in the concrete slab on grade. When examined in August most of the random cracks in the slabs on grade were present. In September additional cracks were observed in some slab areas and some of the cracks were slightly wider than when examined in August.

Sawed joints were present in the concrete slabs on grade. Some of the sawed joints have cracked and some have not.

BACKGROUND

Concrete is a mixture of portland [sic] cement, water, fine and coarse aggregate and in some cases additives. The amount of water used in the mixture to produce a workable mixture is more than is needed to chemically react with the portland [sic] cement. The excess water will eventually evaporate from the hardened concrete. As this excess water leaves the hardened concrete the concrete will contract or shrink due to the loss of volume.

In a concrete slab on grade the concrete near the surface dries and shrinks faster than the interior concrete. The slab is also restrained by the contact between the slab and the supporting material. As the top surface shrinks, tensile stresses occur in the concrete and these tensile stresses can cause cracking in the concrete. These cracks are called drying shrinkage cracks.

Drying shrinkage cracks will occur randomly in the concrete slab if efforts are not taken to control the cracks. Drying shrinkage control joints, also known as contraction joints, should be installed to create weakened planes in the concrete that make the concrete crack in a straight line rather than a random or crooked pattern.

The Portland Cement Association and the American Concrete Institute have a number of publications that describe in detail the design of concrete slabs on grade including the spacing and installation of drying shrinkage crack control joints. In summary PCA and ACI recommend that joints be spaced at approximately 24 to 36 times the thickness of the slab, the areas between joints should be approximately square with a length to width ratio not to exceed 1.5 to 1.0. The joints can be made by scoring, saw cutting, joint materials or other methods. Sawed or tooled joints must be deep enough to create a weakened plane. These joints should be at least one inch deep and ¼ to 1/3 the thickness of the slab. Sawed joints should be cut as soon as the concrete surface is firm enough so that it will not be damaged by the blade. These sawed joints are usually cut within 4 to 12 hours after the concrete hardens.

CONCLUSIONS

From our visual examination it appears that the sawed joints in the concrete slabs on grade at this project were cut too late to effectively control the drying shrinkage cracking. From measuring the depth of some of the joints it appears that some of the joints were not cut deep enough to be effective. Many locations were less than one inch deep. Many of the sawed joints have not cracked through and there are random cracks near the sawed joints. In some instances the random crack crosses the sawed joint. Both of these conditions are indicative of sawed joints that were cut too late to be effective.

The spacing of the joints in the slabs is generally 12 feet on center is most areas. This spacing should have been satisfactory to control the drying shrinkage cracking. If the sawed joints had been cut in a timely manner and to the required depth the random cracking would have been minimal. The sawed joints were cut too late and therefore the cracking had already started taking place.

The Complaint to the Registrar The parties did not resolve their differences and, on January 15, 2000, Mr. Perry made a claim to the Registrar against John Webster Construction, Inc.’s contractor’s license for “excessive cracking in all concrete slabs . . . .” The Registrar’s Inspector C.E. Jorgensen conducted a jobsite inspection and, on February 8, 2000, on behalf of the Registrar directed John Webster Construction, Inc. “to take whatever steps necessary to properly repair concrete cracks in buildings . . . or otherwise resolve this complaint . . . .” On February 28, 2000, Mr. Perry requested a hearing because John Webster Construction, Inc. allegedly had not performed any corrective work. On April 27, 2000, the Registrar issued a Citation and Complaint against John Webster Construction, Inc.’s contractor’s license, charging it with violations of A.R.S. § 32-1154.A.7, .23, and .3. John Webster Construction, Inc. timely answered the Citation and Complaint, as follows: The excessive cracking of concrete located at the Complainant’s property is not a result of my quality of work, but a result of a poor quality product. . . . .

2. The control joints were cut in a timely manner and of sufficient depth.

3. Excess water has not been added. “Making concrete with dirty sand or unwashed aggregate contaminated with silt and clay also can substantially increase shrinkage.” (Concrete Construction, April 2000 pg. 11) (which in this case has been the result) (See attached “B”)[4]

4. Concrete was not tamped, (as per plan specs.) . . . .

5. Concrete cracked parallel to concrete joints indicating the concrete was weaker than the control joints.

6. At least 2 additional jobs poured around the same time as this job using the same supplier also have excessive cracking of the same type. Both poured by different contractors.

7. Compaction tests were performed by a certified geotechnical engineer.

*** The excessive cracks in the concrete are very unfortunate. Although they are a result of poor quality product purchased by the complainant and not due to my quality of work, I have tried to make things right by covering the cracks with epoxy at my expense in hopes that this situation would be resolved without going to a hearing. Mr. Perry has been persistent in blaming me for the excessive cracks in the concrete, when he should be directing this problem elsewhere. (supplier, engineer, ect. [sic])

The Registrar issued a notice of hearing and a hearing was scheduled in due course. Additional Evidence Presented at the Hearing Mr. Perry offered into evidence a letter from Najeh K. Edais, P.E., the principal of Edais Engineering, the engineer on the project. Mr. Edais noted that John Webster Construction, Inc. never contacted the engineer about the note, “DO NOT TAMP,” or to obtain approval for any curing compound. In Mr. Edais’ opinion, “[f]or large slabs vibrating or rolling would be the method of choice to obtain Densification with uniform results through out the slab.” Inspector Jorgensen testified that he performed a prehearing jobsite inspection on September 25, 2000. Although John Webster Construction, Inc. had made some repairs, in Inspector Jorgensen’s opinion, the repairs were not acceptable. Inspector Jorgensen also felt that John Webster Construction, Inc. should be responsible for repairing the cracks in the slabs at Buildings A, B, C, D, and F. Mr. Webster noted at the inspection that “28 unites [were] not repaired because they were occupied.” No evidence was presented of any analysis of the sand or aggregate used on the project. No core or other analysis of the concrete was offered into evidence. No results of compaction tests performed by a certified geotechnical engineer were offered into evidence. Mitigation 24. The Registrar’s Citation and Complaint advised John Webster Construction, Inc. that, if it were found in violation of any contracting law, its prior disciplinary record of final Registrar of Contractors’ orders might be considered in mitigation or aggravation. Accordingly, notice is taken of the Registrar’s official records, which reveal that, if he accepts this recommended decision, it will be the only final order against John Webster Construction, Inc. on the Registrar’s current record. Therefore, Respondent’s prior record is deemed to be excellent and is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW Mr. Perry bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[7] Both parties agreed that the appearance of the concrete was poor. Mr. Perry offered into evidence a report by an C H J, Inc., whose engineer had twice inspected the jobsite, that found the concrete cracked because control joints were cut too late and too shallow. Although Mr. Webster supplied authority that contaminated aggregate or sand in the concrete mixture could cause excessive cracking, no evidence was offered tending to establish that the aggregate or sand that Superstition Crushing supplied to this job in fact was contaminated or defective. Although Mr. Webster did not contract to provide any of the supplies, including a curing compound, as a licensed contractor he must warranty that he can perform contracts in a professional and workmanlike manner. If Mr. Webster could not warranty that excessive cracking would not result from the absence of a curing compound or tamping, he should not have contracted to pour the slabs. Mr. Perry therefore established that John Webster Construction, Inc. violated A.R.S. § 32-1154.A.7, .23, and .3 in its construction of and failure to repair adequately the excessive cracking in the slabs of Buildings A, B, C, D, and F at the Val-U-Storage facility in Yuma. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend John Webster Construction, Inc.’s Class B-01 license, No. 111794, on the effective date of his Decision and Order in this matter, thirty-five days after the date of service. It is further recommended that if, on or before the effective date of the Registrar’s Decision and Order, Respondent furnishes written confirmation that it has repaired or otherwise resolved the violations found at Conclusions of Law No. 4, no suspension take place and the Registrar may close Case No. Y00-0127. It is further recommended that the Registrar advise Mr. Perry that he may lose his right to relief in this forum if he does not provide reasonable access to John Webster Construction, Inc. to perform repairs in all rental units where repairs are needed, including those that are rented or occupied. Done this day, October 16, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The specifications were not admitted into evidence at the hearing but were attached to John Webster Construction, Inc.’s response to the Registrar’s Citation and Complaint.

[2] Mr. Perry refused to pay for the product and Superstition Crushing sent a bill to John Webster Construction, Inc.

[3] Building E is not at issue because its surface had been covered with asphalt. [4] Mr. Webster attached a copy of this article, which opines that concrete contractors are often blamed for adding excess water to the concrete mixture when cracks appear in a slab. In fact, often the problem is due to contamination of the concrete mixture:

The data we analyzed was for concrete made with aggregate and cement from one source. Changing a concrete’s course-aggregate type can double drying shrinkage, and reducing the total aggregate content by a few percent can increase drying shrinkage 20%. Making concrete with dirty sand or unwashed aggregate contaminated with wilt and clay also can substantially increase shrinkage. Adding 2 gallons of water per cubic yard of concrete doesn’t cause nearly the same magnitude of change in shrinkage.

Based on this research and data from other studies, we believe the amounts of water typically added on inspected commercial or industrial concrete projects aren’t large enough to significantly affect shrinkage. Are we condoning the excessive jobsite water additions sometimes made on uninspected work, especially for residential concrete? Not at all. Our point is this: Often, contractors can legitimately add water to concrete in the field. The concrete producer may have held back water that the contractor needs for workability. Or, since batch corrections for aggregate moisture content aren’t an exact science, the water may be needed to compensate for the aggregate being drier than assumed when the batch corrections were made.

Contractors shouldn’t be penalized for adding minor amounts of water to concrete to increase slump by an inch or two. If shrinkage is a major concern, it makes more sense to specify an aggregate grading that allows inclusion of a larger percentage of aggregate, thus lowering the past content.

Ward R. Malisch, Editorial Director and Engineering Editor, “Editorial Comment,” Concrete Construction (April 2000). [5] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[7] Black’s Law Dictionary at page 1064 (6th ed. 1990).

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