ALJDEC

01F-1184-ROC · Registrar of Contractors · 2001-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2001 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president and qualifying party, Tim Drexler. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant is a member of a condominium homeowner’s association (“association”). Pursuant to written contract, the association retained Respondent for the purpose of re-paving the existing asphalt parking lot. Complainant alleges a specified deficiency in the work performed by Respondent and same is discussed in the findings below.

2. Uncontroverted evidence of record established that the asphalt paving in existence on the association’s property, prior to the contract with Respondent, was in poor condition and needed re-paving. Respondent was merely hired to remove the existing asphalt and re-pave with new asphalt type material. It was further undisputed that the parking lot in question was not constructed with any significant degree of slope toward the catch basin and that Respondent was not hired to re-engineer the existing parking lot drainage slope.

3. Shortly after the re-paving project was completed by Respondent it rained and several of the carport areas had ponding water. Most of the residents of said areas contend that they did not have a significant water ponding problem prior to the work performed by Respondent. These residents further contend that the ponding water situation is unacceptable.

4. Complainant presented testimony indicating that although water ponds on the areas in question, the ponding water is usually gone within several hours after rainfall ceases.

5. Respondent contends that the work performed was within minimum industry standards for asphalt work and moreover, that the ponding water is, in fact, draining away toward the center valley gutter but very slowly, due to the minimal slope that was originally engineered and constructed for the parking lot.

6. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held. The inspector appeared at the instant hearing and testified as follows:

a. On November 6, 2000 he performed the aforementioned jobsite inspection at approximately 3:30pm in the afternoon. It had been raining during the day and was still lightly raining at the time of said jobsite inspection. b. The inspector observed the pools of water at issue and noted that their depth ranged from approximately ¼ to 1½ inches deep. c. The inspector elected to return the next day to see if the pooling water had dissipated. He noted that it still was raining at his home at approximately midnight, on the night after the jobsite inspection but stopped shortly thereafter. As planned, he returned to the jobsite in question at 9:30 a.m. the next day, and saw that the over-all parking lot was wet but all of the ponding water was gone. d. The inspector indicated that there are no minimum standards for water ponding on asphalt pavements. However, it was his opinion that since the ponding water was shown to dissipate in a relatively short period of time, there were no construction deficiencies in the asphalt paving work accomplished by Respondent.

7. The evidence presented at the hearing was deemed to be sufficient to support a finding that the ponding water situation at issue was, in fact, capable of draining away, albeit quite slowly. There was no evidence of record that showed that temporary ponding water on asphalt pavement was a substandard condition. Thus, Complainant failed to sustain the requisite burden of proof necessary to establish that Respondent’s performance on the asphalt paving project constituted a violation of the applicable charged sections of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, July 12, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

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